13-557-ag
Sukhdeo v. Holder
                                                                                               BIA
                                                                                        Sagerman, IJ
                                                                                       A035 392 178
                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH
THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC
DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

        At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 13th day of March, two thousand fourteen.

PRESENT: REENA RAGGI,
                 GERARD E. LYNCH,
                 DENNY CHIN,
                                 Circuit Judges.
-----------------------------------------------------------
CHANDRAKER PERSAUD SUKHDEO,
                                 Petitioner,

                         v.                                   No. 13-557-ag

ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
                                 Respondent.
-----------------------------------------------------------

FOR PETITIONER:                          Peter E. Torres, Esq., New York, New York.

FOR RESPONDENT:                          Stuart F. Delery, Assistant Attorney General; Terri J.
                                         Scadron, Assistant Director; Richard Zanfardino, Trial
                                         Attorney, Office of Immigration Litigation, United States
                                         Department of Justice, Washington, D.C.
       UPON DUE CONSIDERATION of this petition for review of a Board of Immigration

Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the

petition for review is DENIED.

       Chandraker Persaud Sukhdeo, a native and citizen of Guyana, seeks review of the

BIA’s February 4, 2013 decision affirming an Immigration Judge’s order of removal and

denial of a waiver of inadmissibility. See In re Chandraker Persaud Sukhdeo, No. A035 392

178 (B.I.A. Feb. 4, 2013), aff’g No. A035 392 178 (Immig. Ct. Napanoch, N.Y. Aug. 17,

2012). We assume the parties’ familiarity with the underlying facts and procedural history

in this case.

       Sukhdeo challenges the agency’s use of the categorical approach to determine that his

convictions under New York Penal Law (“NYPL”) § 265.03(1)(b) for possession of a

weapon constitute “aggravated felon[ies],” which rendered him removable and statutorily

ineligible for a waiver under 8 U.S.C. § 1182(h). We have jurisdiction over this question of

law, which we review de novo. See 8 U.S.C. § 1252(a)(2)(D); Santana v. Holder, 714 F.3d

140, 143 (2d Cir. 2013).

       We have held previously that NYPL § 265.03(1)(b) is categorically a “crime of

violence” under 18 U.S.C. § 16, and, thus, an “aggravated felony,” 18 U.S.C.

§ 1101(a)(43)(F) (defining “aggravated felony” to include “crime of violence (as defined in

section 16 of Title 18 . . . ) for which the term of punishment [is] at least one year”), because

“possession of a loaded firearm with the intent to use it unlawfully against another person

plainly ‘involves a substantial risk that physical force against the person or property of

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another may be used,’” Brooks v. Holder, 621 F.3d 88, 91 (2d Cir. 2010) (quoting 18 U.S.C.

§ 16(b)).     Accordingly, because Sukhdeo was twice convicted of violating NYPL

§ 265.03(1)(b), an aggravated felony, the BIA correctly determined that he is removable, see

8 U.S.C. § 1227(a)(2)(A)(iii) (stating that alien “convicted of an aggravated felony at any

time after admission is deportable”), and ineligible for a waiver, see 8 U.S.C. § 1182(h)

(precluding waiver for lawful permanent resident convicted of “aggravated felony” after

admission).

       We have considered Sukhdeo’s remaining arguments and consider them to be without

merit. For the foregoing reasons, the petition for review is DENIED.

                                          FOR THE COURT:
                                          Catherine O’Hagan Wolfe, Clerk of Court




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