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Santana-Felix v. Barr

United States Court of Appeals, Second Circuit

May 9, 2019

Juan Carlos Santana-Felix, Petitioner,
v.
William P. Barr, United States Attorney General Respondent.[*]

          Argued: February 15, 2019

         Petition for a review of a decision of the Board of Immigration Appeals ("BIA") ordering Petitioner's removal based on a conviction for an aggravated felony. We deny the petition for review on the grounds that Petitioner's conviction for conspiracy in the second degree to commit a felony - here, murder in the second degree - under New York law is an aggravated felony.

          Nicholas J. Phillips, Prisoners' Legal Services of New York, Albany, New York, for Petitioner.

          Rebekah Nahas, Trial Attorney (Joseph H. Hunt, Assistant Attorney General, Briena L. Strippoli, Senior Litigation Counsel, on the brief), Office of Immigration Litigation, United States Department of Justice, Washington, DC, for Respondent.

          Before: Walker, Chin, Sullivan, Circuit Judges.

          PER CURIAM

         Petitioner Juan Carlos Santana-Felix, a native and citizen of the Dominican Republic, seeks review of the BIA's October 24, 2017 affirmance of a June 15, 2017 decision of an Immigration Judge ("IJ") ordering Santana-Felix removed based on his conviction for conspiracy in the second degree, in violation of New York Penal Law ("NYPL") § 105.15. In re Juan Carlos Santana-Felix, No. A095 344 985 (B.I.A. Oct. 24, 2017), aff'g, No. A095 344 985 (Immig. Ct. Napanoch June 15, 2017). Because we find that Santana-Felix's conviction constitutes an aggravated felony, the petition for review is DENIED.

         I.

         Santana-Felix is a native of the Dominican Republic and, since 2006, a lawful permanent resident of the United States. In 2013, he was convicted under NYPL § 105.15 for conspiracy in the second degree. An Immigration Judge ordered his removal in part based on this offense. The BIA affirmed the IJ's order of removal based on two aggravated felony counts: an aggravated felony crime of violence under 8 U.S.C. § 1101(a)(43)(F) as defined in 18 U.S.C. § 16(b), and conspiracy to commit an aggravated felony under 8 U.S.C. § 1101(a)(43)(U). Therefore, only these two grounds are before us. See Xue Hong Yang v. U.S. Dep't of Justice, 426 F.3d 520, 522 (2d Cir. 2005).

         The Supreme Court has since held that the crime of violence definition in § 16(b) is unconstitutionally void for vagueness. Sessions v. Dimaya, 138 S.Ct. 1204, 1215-16 (2018). Accordingly, the crime of violence determination cannot stand, and the only possible remaining basis for Santana-Felix's removal is his conviction under NYPL § 105.15 for conspiracy in the second degree to commit second-degree murder. We review de novo whether this conviction is an aggravated felony. Pierre v. Gonzales, 502 F.3d 109, 113 (2d Cir. 2007).

         II.

         In determining whether a state conviction constitutes an aggravated felony, we generally begin by applying the categorical approach to determine "whether the state statute defining the crime of conviction categorically fits within the generic federal definition of a corresponding" offense listed in the Immigration and Nationality Act ("INA"). Flores v. Holder, 779 F.3d 159, 165 (2d Cir. 2015) (quoting Moncrieffe v. Holder, 569 U.S. 184, 190 (2013)). Under this approach, we look only to the statute of conviction to determine whether there is a categorical match and "'presume that the conviction rested upon nothing more than the least of the acts criminalized' under the state statute." Mellouli v. Lynch, 135 S.Ct. 1980, 1986 (2015) (quoting Moncrieffe, 569 U.S. at 190-91).

         When there is no categorical match, we next consider whether the state statute is divisible under the modified categorical approach - that is, whether the statute encompasses "elements in the alternative, and . . . [thus] multiple crimes," as opposed to alternative means to commit the same crime. Mathis v. United States, 136 S.Ct. 2243, 2249, 2257 (2016). If the statute is divisible, we may look beyond the statute to the record of conviction, including the indictment, to determine whether the conviction is an aggravated felony. See id. at 2249.

         NYPL § 105.15 is not a categorical match to the federal definition of conspiracy, which is an aggravated felony listed in the INA under 8 U.S.C. § 1101(a)(43)(U). Under New York law, "[a] person is guilty of conspiracy in the second degree when, with intent that conduct constituting a [C]lass A felony be performed, he agrees with one or more persons to engage in or cause the performance of such conduct." NYPL § 105.15. The INA's definition of conspiracy, however, requires that the conspiracy be to commit an "aggravated felony." 8 U.S.C. § 1101(a)(43)(U). Thus, we must ask whether all Class A felonies under New York law are "aggravated felon[ies]" under the INA. Id. Some are not. Compare NYPL § 220.21 (providing that possession of controlled substance is Class A felony), with 8 U.S.C. ยง 1101(a)(43)(B) (designating drug trafficking ...


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