17-3482 Parris v. Whitaker BIA Montante, IJ A030 829 477 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 TO 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 19th day of December, two thousand eighteen.

PRESENT: REENA RAGGI, PETER W. HALL, RICHARD J. SULLIVAN, Circuit Judges. _____________________________________

LAWRENCE PARRIS, Petitioner,

v. 17-3482

MATTHEW G. WHITAKER, ACTING UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Stephen K. Tills, Orchard Park, NY.

FOR RESPONDENT: Chad A. Readler, Acting Assistant Attorney General; Brianne Whelan Cohen, Senior Litigation Counsel; Robbin K. Blaya, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC. 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 is DENIED.

Petitioner Lawrence Parris, a native and citizen of Trinidad

and Tobago, seeks review of a September 29, 2017 decision of the

BIA affirming a December 12, 2013 decision of an Immigration Judge

(“IJ”) ordering Parris’s removal, and finding him ineligible for

relief therefrom. In re Lawrence Parris, No. A 030 829 477 (B.I.A.

Sept. 29, 2017), aff’g No. A 030 829 477 (Immig. Ct. Buffalo Dec.

12, 2013). We assume the parties’ familiarity with the underlying

facts and procedural history, which we reference only as necessary

to explain our decision to affirm.

We have reviewed the IJ’s decision as supplemented by the

BIA. Yan Chen v. Gonzales,

(2d Cir. 2005).

Although our review is limited to constitutional claims and

questions of law,

(a)(2)(C)-(D), Parris’s

removability and statutory eligibility for relief from removal are

questions of law that we review de novo, Pierre v. Holder,

(2d Cir. 2009).

In 1994, Parris was convicted of first-degree robbery under

New York Penal Law (“NYPL”) § 160.15(3) and sentenced to three to

nine years’ imprisonment. After serving his term of imprisonment,

Parris began a career as an airplane mechanic. In 2003, he was

convicted under

of entering or attempting to enter 2 the secure area of an airport by fraud or false pretenses,

specifically, lying about his robbery conviction, and was

sentenced to one year of probation. In 2008, on returning from

abroad, Parris was placed in removal proceedings based on his

criminal convictions, both of which were charged as crimes

involving moral turpitude (“CIMT”s). See

(a)(2)(A)(i)(I).

The sole issue on appeal is whether Parris’s 2003 conviction

for entry by false pretenses pursuant to

(a)(3) is

a CIMT.1 If so, this conviction renders Parris removable and bars

relief under former Immigration and Nationality Act § 212(c). See

Matter of Abdelghany,

(B.I.A. 2014)

(“[S]ection 212(c) relief is unavailable to any individual in . .

. removal proceedings who is removable by virtue of pleas or

convictions entered on or after April 1, 1997.”).

“We afford Chevron deference to the BIA’s construction of

undefined statutory terms such as ‘moral turpitude’ because of the

BIA’s expertise applying and construing the immigration laws.”

Rodriguez v. Gonzales,

(2d Cir. 2006); see Chevron,

1 The agency also determined that Parris’s robbery conviction was an aggravated felony that barred cancellation of removal. See

(a)(43)(F), 1229b(a)(3). Parris has waived any challenge to the aggravated felony determination. See Yueqing Zhang v. Gonzales,

, 545 n.7 (2d Cir. 2005). In any event, Parris’s conviction for first-degree robbery under New York Penal Law § 160.15(3) is a crime of violence as defined in

(a). Stuckey v. United States,

(2d Cir. 2017) (holding that NYPL § 160.15(3) is a “violent felony” under similar provision of Armed Career Criminal Act). 3 U.S.A, Inc. v. Nat. Res. Def. Council, Inc.,

(1984). A CIMT is an offense involving “conduct that shocks the

public conscience as being inherently base, vile, or depraved, and

contrary to the accepted rules of morality and the duties owed

between persons or to society in general.” Rodriguez,

(quoting Hamdan v. I.N.S.,

(5th Cir. 1996)).

The definition encompasses “crimes ‘impairing or obstructing an

important function of a department of the government by defeating

its efficiency or destroying the value of its lawful operations by

deceit, graft, trickery, or dishonest means.’”

(brackets

omitted) (quoting Matter of Flores,

(B.I.A. 1980)). In Rodriguez, we deferred to the BIA’s CIMT

definition in the context of crimes that impair government

functions and held that a petitioner’s conviction for making a

materially false statement on a passport application is a CIMT

because the statute “involves deceit and an intent to impair the

efficiency and lawful functioning of the government.” Id. at 64.

Although we defer to the BIA’s definition of a CIMT, we review

de novo whether § 1036(a)(3) falls within that definition. Id.

at 63. We apply the categorical approach, focusing on “the

intrinsic nature of the offense rather than on the factual

circumstances surrounding any particular violation.” Id. (quoting

Gill v. I.N.S.,

, 89–90 (2d Cir. 2005)). Thus, we look

to the elements of the statute of conviction to determine whether 4 a given crime is a CIMT. Gill,

; see also Matter

of Silva-Trevino,

, 831 (B.I.A. 2016).

The statute of conviction applicable to Parris provides that

“[w]hoever, by any fraud or false pretense, enters or attempts to

enter . . . any secure area of any airport” is subject to a fine

or up to 6 months’ imprisonment, or both.

(a)(3),

(b)(2) (2003). The statute defines “secure area” as “an area

access to which is restricted by the airport authority or a public

agency.”

§ 1036(c)(1).

Section 1036(a)(3)’s requirement that entry be obtained

through fraud or false pretenses satisfies the “deceit or

dishonesty” component of the CIMT definition because it

necessarily involves “an affirmative act calculated to deceive the

government.” Rodriguez,

(quoting Flores,

). As we held in Rodriguez, an intent to deceive,

coupled with some impairment of government functioning, whether

intended or not, satisfies the mental culpability requirement for

a CIMT.

The unauthorized entry into a secure area of an

airport necessarily impairs the important government function of

maintaining airport security. Legislative history shows that the

purpose of § 1036, which was enacted as part of the Enhanced

Federal Security Act of 2000, was to increase airport security.

See

Stat. 2738; see also H.R. Rep. No.

106-913 (2000) (floor statements that undercover agents evaded 5 security at two major national airports using fake credentials);

146 Cong. Rec. H8570-71 (Oct. 2, 2000) (Statement of Rep. Canady)

(“This bill is an important step towards closing a major gap in

security that currently exists at our Nation’s most secure

buildings and airports . . . [w]e must do all that we can to thwart

and punish those who would threaten our public safety and national

security.”). Because the statute requires both the use of

deception and an intent to gain unauthorized entry into a secure

area, and because this unauthorized entry necessarily impairs the

government’s interest in protecting airport security, Parris’s

conviction is a CIMT. See Rodriguez, 451 F.3d at 64–65 (concluding

that conviction was a CIMT because petitioner intended to obtain

a U.S. passport by falsely representing himself as a U.S. citizen,

and that act necessarily impaired the passport office’s

functioning, even absent intent to harm the government).

We have considered Parris’s remaining arguments and find them

to be without merit. Accordingly, the petition for review is

DENIED.

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

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