Argued: February 15, 2019
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
Before: Walker, Chin, Sullivan, Circuit Judges.
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.
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).
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).
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).
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.
§ 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. § 1101(a)(43)(B) (designating
drug trafficking ...