17-2485-cv Brown v. Whitaker

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 23rd day of January, two thousand nineteen.

PRESENT: ROBERT A. KATZMANN, Chief Judge, PETER W. HALL, GERARD E. LYNCH, Circuit Judges.

ROMAIN CHEVAUN BROWN,

Petitioner,

v. No. 17-2485-cv

MATTHEW G. WHITAKER, Acting United States Attorney General,

Respondent.

For Petitioner: Nicholas J. Phillips, Prisoners’ Legal Services of New York, Albany, NY.

For Respondent: Sarah Byrd, Joseph H. Hunt, and Lindsay Glauner, U.S. Department of Justice, Washington, DC.

1 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that this petition for review of a Board of Immigration Appeals decision is DENIED.

Romain Chevaun Brown seeks review of a July 13, 2017 decision of the Board of

Immigration Appeals (“BIA”) affirming an earlier decision of an Immigration Judge concluding

that his conviction for attempted second-degree robbery in violation of New York Penal Law

(“NYPL”) Sections 110.00 and 160.10 renders him removable for an aggravated felony crime of

violence as defined in

(a). We assume the parties’ familiarity with the underlying

facts, the procedural history of the case, and the issues presented for review.

Brown argues that the force sufficient to establish the New York robbery crime of which

he was convicted falls well short of the “violent force . . . capable of causing physical pain or

injury” required to satisfy the elements clause of § 16(a). Johnson v. United States,

,

140 (2010). Brown’s argument, however, is foreclosed by this Court’s recent decision in United

States v. Pereira-Gomez,

(2d Cir. 2018), cert. petition docketed, No. 18-6972 (U.S.

Dec. 11, 2018). There, after considering Johnson, a panel of this Court stated that all degrees of

New York robbery and attempted robbery qualify as crimes of violence under the November 1,

2014 edition of the U.S. Sentencing Guidelines.

. That Guideline and § 16(a) use nearly

identical language to describe the violence component. Compare

(a) (defining a

crime of violence to include “an offense that has as an element the use, attempted use, or threatened

use of physical force against the person or property of another”), with U.S.S.G. § 2L1.2 cmt.

n.1(B)(iii) (Nov. 1, 2014) (defining a crime of violence to include any state law offense that “has

as an element the use, attempted use, or threatened use of physical force against the person of

another”). Accordingly, because Brown’s conviction for attempted second-degree robbery under

NYPL Sections 110.00 and 160.10 necessarily included the use of violent force as an element, it

2 categorically constitutes an aggravated felony crime of violence as defined in

(a),

and the agency did not err in denying Brown’s motion to terminate his removal proceedings.

We have considered all of Brown’s remaining contentions and have found in them no basis

for granting his petition. Therefore, Brown’s petition for review is DENIED, any stay of removal

that the Court previously granted is VACATED, and any pending motion for a stay of removal is

DISMISSED as moot.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

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