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Cesar Manuel Gomez Santana, Aka Cesar M. Gomez, Aka Mannel Gomez v. Eric H. Holder

April 22, 2013

CESAR MANUEL GOMEZ SANTANA, AKA CESAR M. GOMEZ, AKA MANNEL GOMEZ, PETITIONER,
v.
ERIC H. HOLDER, JR., UNITED STATES ATTORNEY GENERAL, RESPONDENT.



The opinion of the court was delivered by: Chin, Circuit Judge:

10-2307-ag

Santana v. Holder

Submitted: February 21, 2013

Before: CHIN and DRONEY, Circuit Judges, and RESTANI, Judge.*fn1

Petition for review of an order of the Board of Immigration Appeals, affirming the decision of an Immigration Judge finding petitioner removable and ineligible for cancellation of removal on the basis that a conviction for attempted arson in the second degree under New York law is an "aggravated felony."

DISMISSED.

Petitioner Cesar Manuel Gomez Santana was convicted in state court of attempted arson in the second degree in violation of New York law. In this case -- a petition for review of an order of the Board of Immigration Appeals ("BIA") affirming a decision of an Immigration Judge finding Santana removable and ineligible for cancellation of removal -- the question is whether attempted arson in the second degree is a "crime of violence" and therefore an "aggravated felony." We hold that it is, and, accordingly, we dismiss the petition for review.

STATEMENT OF THE CASE

A. The Facts

The facts are undisputed. Santana, a native and citizen of the Dominican Republic, entered the United States as a lawful permanent resident on October 4, 1968. In 1991, Santana was convicted, pursuant to a guilty plea, in the Supreme Court of the State of New York, New York County, of attempted arson in the second degree, in violation of New York Penal Law ("NYPL") §§ 150.15 and 110.00, and sentenced to a term of imprisonment of eighteen to fifty-four months. In 1999, Santana pled guilty in the Criminal Court of the City of New York, New York County, to criminal possession of a controlled substance (cocaine) in the seventh degree, in violation of NYPL § 220.03, and sentenced to a term of imprisonment of time served.

In January 2007, Santana visited family in the Dominican Republic. When he returned to the United States on February 16, 2007 and applied for admission as a returning lawful permanent resident, officers of the Department of Homeland Security determined that he was inadmissible to the United States by reason of his convictions.

B. Proceedings Below

The Department of Homeland Security initiated removal proceedings by serving Santana, on January 18, 2008, with a Notice to Appear. The Notice to Appear charged Santana with removability as an alien who had been convicted of: (1) a crime of moral turpitude under § 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act ("INA") (attempted arson), and (2) a crime relating to a controlled substance under INA § 212(a)(2)(A)(i)(II) (possession of a controlled substance).

On December 3, 2008, Immigration Judge Noel Brennan found Santana removable based on the controlled substance conviction. On August 25, 2009, Immigration Judge Alan Page (the "IJ") found Santana removable based on the attempted arson conviction. Santana applied for cancellation of removal. By decision dated January 6, 2010, the IJ denied Santana's application for cancellation of removal based on the arson conviction, concluding that attempted arson in the second degree is an "aggravated felony" as defined in the INA, rendering Santana ...


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