17‐3494‐ag
Thompson v. Barr


                              UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT

                                      August Term 2018

                      (Argued: May 2, 2019      Decided: May 13, 2019)

                                    Docket No. 17‐3494‐ag



                     CHIKE ABAYOMI THOMPSON, AKA CHIKE THOMPSON,

                                                         Petitioner,

                                          ‐ against ‐

                    WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL,

                                                         Respondent.



                               ON PETITION FOR REVIEW FROM
                            THE BOARD OF IMMIGRATION APPEALS


Before:
                   KEARSE, WESLEY, and CHIN, Circuit Judges.

                   Petition for review of a decision of the Board of Immigration

Appeals dismissing petitionerʹs appeal from a decision of an Immigration Judge

ordering his removal on the ground that he had been convicted of an aggravated

felony crime of violence. On review, petitioner argues that his conviction for
second‐degree assault under New York Penal Law § 120.05(1) is not a crime of

violence as defined in 18 U.S.C. § 16(a).

             PETITION DENIED.



                          Chike Abayomi Thompson, pro se, Brooklyn, New York,
                                for Petitioner.

                          Song E. Park, Senior Litigation Counsel; Joseph H.
                                Hunt, Assistant Attorney General; Cindy S.
                                Ferrier, Assistant Director; Civil Division, United
                                States Department of Justice, Washington, DC, for
                                Respondent.



PER CURIAM:

             Petitioner Chike Abayomi Thompson, a native and citizen of

Jamaica, seeks review of a decision of the Board of Immigration Appeals (ʺBIAʺ)

dismissing his appeal of a decision of an Immigration Judge (ʺIJʺ) ordering his

removal on the ground that he had been convicted of an aggravated felony crime

of violence. In re Chike Abayomi Thompson, No. A 089 152 207 (B.I.A. Oct. 12,

2017), aff’g No. A 089 152 207 (Immig. Ct. Batavia Mar. 1, 2017).

             In December 2015, Thompson was convicted of the offense of assault

in the second degree in violation of New York Penal Law (ʺNYPLʺ) § 120.05(1).

Removal proceedings were initiated in November 2016, and on March 1, 2017, an


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IJ denied Thompsonʹs motion to terminate the removal proceedings. The IJ also

ordered Thompsonʹs removal under 8 U.S.C. § 1227(a)(2)(A)(iii) on the ground

that his conviction for violating NYPL § 120.05(1) was an aggravated felony

crime of violence under 8 U.S.C. § 1101(a)(43)(F), which defines ʺcrime of

violenceʺ by reference to 18 U.S.C. § 16. On October 12, 2017, the BIA affirmed

the IJʹs decision and dismissed Thompsonʹs appeal.

              Our jurisdiction to review a final order of removal against an alien,

such as Thompson, who was ordered removed because of an aggravated felony,

is limited to ʺconstitutional claims or questions of law.ʺ 8 U.S.C. § 1252(a)(2)(C),

(D). Thompson raises a reviewable question of law: whether a conviction under

NYPL § 120.05(1) is an aggravated felony crime of violence under 8 U.S.C.

§ 1101(a)(43)(F) and 18 U.S.C. § 16. The BIAʹs decision is the basis for our judicial

review. Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review the

question of law de novo. Pierre v. Holder, 588 F.3d 767, 772 (2d Cir. 2009).

              The sole issue before us is whether a conviction under NYPL

§ 120.05(1) is a crime of violence as defined in 18 U.S.C. § 16(a).1 We have not yet

addressed whether a conviction under New Yorkʹs second‐degree assault statute


1       We need not determine whether NYPL § 120.05(1) is a crime of violence under 18 U.S.C.
§ 16(b) because the Supreme Court held that § 16(b) is void for vagueness. See Sessions v.
Dimaya, 138 S. Ct. 1204, 1223 (2018).
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is a crime of violence.2 Section 16(a) defines ʺcrime of violenceʺ as ʺan offense

that has as an element the use, attempted use, or threatened use of physical force

against the person or property of another.ʺ 18 U.S.C. § 16(a). ʺ[F]orce is defined

broadly as power, violence, or pressure directed against a person or thing.ʺ

Santana v. Holder, 714 F.3d 140, 144 (2d Cir. 2013) (internal quotation marks

omitted). Furthermore, the ʺuse of physical forceʺ refers to intentional ‐‐ rather

than accidental ‐‐ force and ʺsuggests a category of violent, active crimes.ʺ Leocal

v. Ashcroft, 543 U.S. 1, 9‐11 (2004); see also Johnson v. United States, 559 U.S. 133,

140 (2010) (holding that 18 U.S.C. § 924(e)ʹs nearly identical ʺphysical forceʺ

clause ʺmeans violent force ‐‐ that is, force capable of causing physical pain or

injury to another personʺ).

               To determine whether a state conviction is a crime of violence, we

apply the categorical approach and look only to the elements of the state offense

‐‐ not the facts underlying the crime. See Morris v. Holder, 676 F.3d 309, 314 (2d

Cir. 2012); see also Mellouli v. Lynch, 135 S. Ct. 1980, 1986 (2015). Under NYPL

§ 120.05(1), ʺ[a] person is guilty of assault in the second degree when: . . . [w]ith

intent to cause serious physical injury to another person, he causes such injury to


2      We recently held that a conviction under Connecticutʹs first‐degree assault statute,
Conn. Gen. Stat. § 53a‐59(a)(1), is a crime of violence under § 16(a). See Banegas Gomez v. Barr,
No. 15‐3269, 2019 WL 1768914, at *5 (2d Cir. Apr. 23, 2019).
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such person or to a third person.ʺ In addition, New York defines ʺ[s]erious

physical injuryʺ as ʺphysical injury which creates a substantial risk of death, or

which causes death or serious and protracted disfigurement, protracted

impairment of health or protracted loss or impairment of the function of any

bodily organ.ʺ NYPL § 10.00(10).

             Thompsonʹs conviction for second‐degree assault, therefore, meets

§ 16(a)ʹs physical force requirement because NYPL § 120.05(1) requires that a

defendant (1) cause a serious physical injury to another (2) with the intent to do

so. See NYPL § 120.05(1); Villanueva v. United States, 893 F.3d 123, 130 n.6 (2d Cir.

2018) (concluding that intent to cause serious physical injury ʺis necessary to

make [an] offense a ʹviolent felonyʹʺ); see also Banegas Gomez, 2019 WL 1768914, at

*5 (holding that a conviction under Conn. Gen. Stat. § 53a‐59(a)(1) constitutes a

crime of violence under § 16(a)); Conn. Gen. Stat. § 53a‐59(a)(1) (ʺA person is

guilty of assault in the first degree when: . . . ʺ[w]ith intent to cause serious

physical injury[,] . . . he causes such injury . . . by means of a deadly weapon or

dangerous instrument . . . .ʺ).

             The intent to cause bodily injury necessarily encompasses the use of

force as required under § 16(a). Thus, a person necessarily uses physical force

when violating the NYPL § 120.05(1). See United States v. Castleman, 572 U.S. 157,

                                           5
170 (2014) (ʺIt is impossible to cause bodily injury without applying force in the

common‐law sense.ʺ); id. at 169 (reasoning that ʺthe knowing or intentional

causation of bodily injury necessarily involves the use of physical forceʺ).

Moreover, force that causes ʺserious physical injuryʺ under § 120.05(1) is ʺviolent

force ‐‐ that is, force capable of causing physical pain or injury to another

person,ʺ Johnson, 559 U.S. at 140, because New York defines ʺserious physical

injuryʺ as ʺphysical injury which creates a substantial risk of death, or which

causes death or serious and protracted disfigurement, protracted impairment of

health or protracted loss or impairment of the function of any bodily organ,ʺ

NYPL § 10.00(10).

             Finally, Thompson argues that NYPL § 120.05(1) is overbroad

because it applies to conduct that does not involve the use or threatened use of

physical force. For example, Thompson argues that NYPL § 120.05(1) would

cover poisoning someone or placing a barrier in front of a car causing an

accident. This argument is without merit, however, as we have held that ʺa use

of physical force can encompass acts undertaken to cause physical harm, even

when the harm occurs indirectly (as with poisoning),ʺ Villanueva, 893 F.3d at 130

(internal quotation marks omitted), or occurs because the defendant ʺinitiat[ed]

. . . a consequence that inflicts injury,ʺ id. at 129, as with placing a physical barrier

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in front of a car causing an accident, see Castleman, 572 U.S. at 170 (ʺ[T]he

common‐law concept of ʹforceʹ encompasses even its indirect application.ʺ);

Banegas Gomez, 2019 WL 1768914, at *4 (ʺ[E]ven if a defendant can commit . . .

assault . . . by means of poison, this nonetheless encompasses the requisite forceʺ

to constitute a crime of violence under § 16(a).).

                                    CONCLUSION

             Accordingly, the petition for review is DENIED.




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