10-2307-ag
Santana v. Holder


                        U NITED S TATES C OURT OF A PPEALS
                             FOR THE S ECOND C IRCUIT


                        ________________________

                              August Term 2012

  (Submitted: February 21, 2013                   Decided: April 22, 2013)

                          Docket No. 10-2307-ag

                        ________________________

   C ESAR M ANUEL G OMEZ S ANTANA ,   AKA   C ESAR M. G OMEZ ,   AKA   M ANNEL G OMEZ ,

                                                      Petitioner,

                                            v.

          E RIC H. H OLDER , J R ., U NITED S TATES A TTORNEY G ENERAL ,

                                                      Respondent.

                        ________________________

Before:
            C HIN and D RONEY , Circuit Judges, and R ESTANI , Judge. *

                        ________________________

            Petition for review of an order of the Board of

Immigration Appeals, affirming the decision of an

Immigration Judge finding petitioner removable and


      *
          The Honorable Jane A. Restani, of the United States
Court of International Trade, sitting by designation.
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.

                       ____________________________

                       Cesar Manuel Gomez Santana, pro se,
                            Macclenny, Florida.

                       Holly M. Smith, Luis E. Perez, Senior
                            Litigation Counsels, Office of
                            Immigration Litigation, Tony
                            West, Assistant Attorney
                            General, Civil Division, United
                            States Department of Justice,
                            Washington, District of
                            Columbia, for Respondent.
                       ____________________________

CHIN, Circuit Judge:

         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


                             - 2 -
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

                              - 3 -
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

                             - 4 -
the arson conviction, concluding that attempted arson in the

second degree is an "aggravated felony" as defined in the

INA, rendering Santana statutorily ineligible for

cancellation of removal.   See INA § 240A(a).   Accordingly,

the IJ ordered Santana deported to the Dominican Republic.

          Santana appealed the IJ's decision to the BIA,

arguing that attempted arson in the second degree under New

York law is not an "aggravated felony" constituting a "crime

of violence."   By order dated May 19, 2010, the BI A agreed

with the IJ's conclusion that Santana's conviction for

attempted arson in the second degree was an "aggravated

felony," and dismissed the appeal.

          Santana petitioned this Court for review of the

BIA's order, and moved for a stay of removal pending the

appeal.   We denied the motion for a stay and dismissed the

appeal except to the extent that Santana raised a question

of law regarding whether his conviction for attempted arson

in the second degree constituted an "aggravated felony."       We

now address the issue.




                             - 5 -
                          DISCUSSION

A.   Applicable Law

         Although we lack jurisdiction to review final

orders of removal against aliens convicted of an "aggravated

felony," we have jurisdiction to review constitutional

claims or questions of law, including whether a specif ic

offense constitutes an "aggravated felony."     See INA

§ 242(a)(2)(C)-(D); Blake v. Gonzales, 481 F.3d 152, 155-56

(2d Cir. 2007).   Here, if Santana's conviction under NYPL

§§ 150.15 and 110.00 is an "aggravated felony," we must

dismiss the petition for lack of jurisdiction.     Higgins v.

Holder, 677 F.3d 97, 100 (2d Cir. 2012).

         While this Court gives substantial deference to the

BIA's interpretation of the INA, a statute it is charged

with administering, we review de novo its interpretation of

state and federal criminal laws.     See Dickson v. Ashcroft,

346 F.3d 44, 48 (2d Cir. 2003).     Because this petition for

review involves the interpretation of 18 U.S.C. § 16 and

NYPL §§ 150.15, 110.00, our review is de novo.

         The INA provides that "any alien convicted of . . .

a crime involving moral turpitude . . . or an attempt . . .

                            - 6 -
to commit such a crime" is inadmissible to the United

States.   INA § 212(a)(2)(A)(i)(I).     The Attorney General may

cancel removal of an inadmissible alien in certain

circumstances if the alien "has not been convicted of an

aggravated felony."    Id. § 240A(a).

          INA § 101(a)(43)(F) defines an "aggravated felony"

to include "a crime of violence (as defined in s ection 16 of

Title 18 . . .) for which the term of imprisonment [is] at

least one year."   An attempt to commit a "crime of violence"

is also an "aggravated felony."      Id. § 101(a)(43)(U).

          Section 16 of Title 18 of the United States Code

defines a "crime of violence" as:

          (a) an offense that has as an element the use,
          attempted use, or threatened use of physical force
          against the person or property of another, or

          (b) any other offense that is a felony and that, by
          its nature, involves a substantial risk that
          physical force against the person or property of
          another may be used in the course of committing the
          offense.

18 U.S.C. § 16.    While § 16 uses the phrase "substantial

risk" that physical force may be used, we have held that the

use of physical force must be intentional.      See Vargas-

Sarmiento v. U.S. Dep't of Justice, 448 F.3d 159, 169-70 (2d

                             - 7 -
Cir. 2006) (use of physical force contemplated by § 16

"refers to an intentional, rather than merely negligent or

accidental, use of force"); Dalton v. Ashcroft, 257 F.3d

200, 208 (2d Cir. 2001) (§ 16(b) "refers only to those

offenses in which there is a substantial likelihood that the

perpetrator will intentionally employ physical force"

(internal quotation marks omitted)).

         We use a "categorical approach" to determine

whether an offense is a "crime of violence" within the

meaning of 18 U.S.C. § 16.    Vargas-Sarmiento, 448 F.3d at

166 (citation omitted).    We "focus[] on the intrinsic nature

of the offense . . . .    [T]he singular circumstances of an

individual petitioner's crimes should not be considered, and

only the minimum criminal conduct necessary to sustain a

conviction under a given statute is relevant."    Dalton, 257

F.3d at 204 (internal quotation marks omitted).

         Under NYPL § 150.15, the elements of arson in the

second degree are:   (1) the defendant starts a fire, (2)

with intent to damage a building; (3) he damages the

building, (4) while another person is present in the

building; and (5) he knows or should know that the presence

                             - 8 -
of such a person in the building is a reasonable

possibility.   Payne v. Jones, 638 F. Supp. 669, 673

(E.D.N.Y. 1986), aff'd, 812 F.2d 712 (2d Cir. 1987)

(unpublished order). 1   NYPL § 110.00 criminalizes attempts

to commit a crime.

         Attempted arson in the second degree is a class C

felony, see N.Y. Penal Law §§ 110.05, 150.15, punishable by

a term of imprisonment of not less than one year but not

more than fifteen years, see id. § 70.00.    "An offense is

classified by federal law as a felony if 'the maximum term

of imprisonment authorized' is more than one year."       Blake,

481 F.3d at 160 (quoting 18 U.S.C. § 3559(a)).

B.   Application

         Santana does not challenge the BIA's determination

that he is removable as an inadmissible alien.     Santana


     1
         New York Penal Law ("NYPL") § 150.15 provides:

         A person is guilty of arson in the second degree
         when he intentionally damages a building or motor
         vehicle by starting a fire, and when (a) another
         person who is not a participant in the crime is
         present in such building or motor vehicle at the
         time, and (b) the defendant knows that fact or
         the circumstances are such as to render the
         presence of such a person therein a reasonable
         possibility.
                              - 9 -
argues only that the BIA erred in holding that he was

ineligible for cancellation of removal because arson is a

"crime of violence," and, thus, an "aggravated felony."

         The parties agree that only subsection (b) of 18

U.S.C. § 16 is at issue in this case.     As there is no

dispute that attempted arson in the second degree is a

felony, the question before the Court is whether the

offense, by its nature, involves a substantial risk of the

intentional use of physical force against the person or

property of another.   See Blake, 481 F.3d at 156; Vargas-

Sarmiento, 448 F.3d at 160-70.

         While we have not previously considered this issue,

other circuits, considering other state laws, have held that

arson is a "crime of violence."      See, e.g., United States v.

Velez-Alderete, 569 F.3d 541, 546 (5th Cir. 2009) (per

curiam) (Texas law); Mbea v. Gonzales, 482 F.3d 276, 280

(4th Cir. 2007) (District of Columbia law); United States v.

Velasquez-Reyes, 427 F.3d 1227, 1231 (9th Cir. 2005)

(Washington law); United States v. Schwartz, 235 F. App'x

914, 916-17 (3d Cir. 2007) (unpublished decision)

(Pennsylvania law); United States v. Adams, 51 F. App'x 507,

                            - 10 -
508 (6th Cir. 2002) (unpublished decision) (Kentucky law).

We reach a similar conclusion in this case with respect to

the New York statute.

            First, fire is a physical force.     As the NYPL does

not define "physical force," we supply the words with their

ordinary meaning.     See United States v. Desposito, 704 F.3d

221, 226 (2d Cir. 2013).     "Force" is defined broadly as

"power, violence, or pressure directed against a person or

thing."     Dickson, 346 F.3d at 50 (quoting Chrzanoski v.

Ashcroft, 327 F.3d 188, 192 (2d Cir. 2003); Black's Law

Dictionary 656 (7th ed. 1999)).        "Physical force" has also

been defined as "an influence acting within the physical

world, a force of nature."     Mbea, 482 F.3d at 280 (quotation

omitted).     "Fire is nothing if not a force of nature that

exerts an influence within the physical world."        Id.

(internal quotation marks omitted).        Fire is physical force

in the sense that it can impose "physical barriers of

forcible restraint."     Dickson, 346 F.3d at 49.     Fire also

has the power to destroy buildings or injure people.         See In

re Palacios-Pinera, 22 I. & N. Dec. 434, 437 (BIA 1998).




                              - 11 -
         Second, attempted arson in the second degree

involves the intentional use of fire.   A person is guilty of

arson in the second degree when he "intentionally damages a

building or motor vehicle by starting a fire."   N.Y. Penal

Law § 150.15 (emphasis added).   The intentional use of

physical force requires "active employment" of the force,

Leocal v. Ashcroft, 543 U.S. 1, 9 (2004), and there can be

no doubt that starting a fire with the intent to damage a

building involves the "active employment" of fire in

committing the offense.

         Third, attempted arson in the second degree

involves a substantial risk that fire may be used against

the person or property of another.   NYPL § 150.15 requires

that, at the time the defendant started a fire with the

intent to damage a building, a person other than a

participant in the crime was present in the building, and

that the defendant knew or should have known that fact.      See

N.Y. Penal Law § 150.15; Payne, 638 F. Supp. at 673.      Thus,

the offense will always involve a substantial risk that fire

may be used against another, i.e., the person other than the

defendant who is in the building at the time of the fire.

                           - 12 -
The fact that the other person is not actually injured is

irrelevant, as § 16(b) "covers offenses that naturally

involve a person acting in disregard of the risk tha t

physical force might be used against another in committing

an offense[;] . . . physical force need not actually be

applied."     Leocal, 543 U.S. at 10-11.

            Santana argues that NYPL § 150.15 does not

necessarily involve the use of fire against the "property of

another," as arson in the second degree may be committed by

a person setting fire to property he owns himself.       See

Shepherd v. People, 19 N.Y. 537, 542 (1859); People v.

Rosen, 297 N.Y.S. 877, 880 (3d Dep't 1937).     Damage to

property of another, however, is not required for purposes

of § 16(b).    Because NYPL § 150.15 always requires the

presence of someone in the building, that presence creates a

substantial risk in every case that physical force may be

used against another.     That the building is owned by the

defendant does not alleviate the danger that fire will

injure the persons inside or spread to nearby buildings.

See, e.g., Salim v. Reno, No. CIV. A. 2000-CV-4603, 2000 WL

33115910, at *2 (E.D. Pa. Jan. 16, 2001) (unpublished

                              - 13 -
decision) ("It matters little whether the property set

ablaze belongs to the arsonist or another.    Fires spread,

endangering not only the arsonist's direct target but also

nearby persons and property," as well as firefighters and

emergency workers.); In re Palacios-Pinera, 22 I. & N. Dec.

at 437 (starting fire always involves risk that fire will

spread beyond originally intended property to another that

may be occupied by other persons).

         Arson has been characterized in other contexts as

involving "purposeful, violent, and aggressive conduct."

Chambers v. United States, 555 U.S. 122, 128 (2009) (quoting

Begay v. United States, 553 U.S. 137, 144-45 (2008))

(internal quotation marks omitted).     The United States

Sentencing Guidelines enumerates arson as a "crime of

violence" warranting enhanced penalties.     See U.S.

Sentencing Guidelines Manual §§ 2L1.2(b)(1) cmt.

n.1(B)(iii), 4B1.2(a)(2) (2012).     Fire is a powerful weapon

-- easy to wield, capable of overwhelming destruction, and

difficult if not impossible to control.     It would defy

common sense to characterize arson as anything but a violent

crime.

                           - 14 -
         Accordingly, we hold that attempted arson in the

second degree under New York law is a felony that, by its

nature, involves a substantial risk of the intentional use

of physical force against the person or property of another.

Hence, attempted arson in the second degree is a "crime of

violence" under 18 U.S.C. § 16(b), and an "aggravated

felony" under INA § 101(a)(43)(F), (U).   Therefore, we lack

jurisdiction over Santana's petition for review.

                         CONCLUSION

         For the foregoing reasons, Santana's petition for

review is DISMISSED.




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