19-2910 Singh v. Garland BIA Wright, IJ A034 607 552

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 16th day of November, two thousand twenty-two.

PRESENT: REENA RAGGI, JOSEPH F. BIANCO, SARAH A. L. MERRIAM, Circuit Judges. _____________________________________

GORAKH NAUTH SINGH, AKA GORAKH N. SINGH, AKA GURAKH SINGH, AKA GORAKH O. SINGH, AKA GURAKA SINGH, Petitioner,

v. 19-2910

MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: H. Raymond Fasano, Esq., Youman, Madeo & Fasano, LLP, New York, NY.

FOR RESPONDENT: Ethan P. Davis, Acting Assistant Attorney General, Civil Division; Anthony P. Nicastro, Assistant Director, Office of Immigration Litigation; Jenny C. Lee, 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 for review is DENIED.

Petitioner Gorakh Nauth Singh, a native and citizen of Guyana,

seeks review of a decision of the BIA affirming a decision of an

Immigration Judge (“IJ”) ordering Singh’s removal based on a prior

aggravated felony conviction. In re Gorakh Nauth Singh, No. A034

607 552 (B.I.A. Aug. 12, 2019), aff’g No. A034 607 552 (Immig. Ct.

N.Y.C. Jan. 23, 2018). We assume the parties’ familiarity with

the underlying facts and procedural history.

We have reviewed the IJ’s decision as modified and

supplemented by the BIA. See Xue Hong Yang v. U.S. Dep’t of Just.,

(2d Cir. 2005); Yan Chen v. Gonzales,

(2d Cir. 2005). The sole issue before us is whether

Singh’s conviction for attempted first-degree assault in violation

of New York Penal Law (“NYPL”) §§ 110.00, 120.10(1) is a crime of

violence under

(a)(43)(F). We review this question

of law de novo. See Pierre v. Holder,

(2d Cir.

2009).

The Immigration and Nationality Act includes in the

definition of aggravated felony “a crime of violence . . . for

2 which the term of imprisonment [is] at least one year,”

(a)(43)(F), as well as an attempt to commit an aggravated

felony,

§ 1101(a)(43)(U). Section 1101(a)(43)(F) defines a

crime of violence by reference to

, which in turn

defines a “crime of violence” as “an offense that has as an element

the use, attempted use, or threatened use of physical force against

the person or property of another.”

(a). The “use

of physical force” refers to intentional, rather than accidental,

force and “suggests a category of violent, active crimes.” Leocal

v. Ashcroft,

(2004);1 see also Johnson v. United

States,

(2010) (holding that

(e)’s

nearly identical “physical force” clause “means violent force—that

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

person”). Accordingly, to constitute a crime of violence, a crime

must require violent force.

To determine whether a state conviction is for a crime of

violence, we apply a categorical approach, looking to the elements

of the state offense, not the facts underlying the crime. See

Morris v. Holder,

(2d Cir. 2012). We “‘presume

that the conviction rested upon nothing more than the least of the

1 See United States v. Scott,

(2d Cir. 2021) (en banc) (stating that Leocal’s reference to active crimes emphasized that use of physical force “must be more than accidental or negligent, not that it must involve the defendant’s physical movement”).

3 acts criminalized’ under the state statute.” Mellouli v. Lynch,

(2015) (quoting Moncrieffe v. Holder,

(2013)).

Because NYPL § 120.10 has multiple, divisible subsections, we

apply the modified categorical approach. See Singh v. Barr,

(2d Cir. 2019). Here, Singh’s indictment tracks the

language of NYPL § 120.10(1), and so we must consider whether that

subsection’s elements are a categorical match to the definition in

(a).

Under NYPL § 120.10(1), a “person is guilty of assault in the

first degree when . . . [w]ith intent to cause serious physical

injury to another person, he causes such injury to such person or

to a third person by means of a deadly weapon or a dangerous

instrument.” The elements of this statute are either

indistinguishable from or require a greater showing of force than

sub-sections (1) and (2) of New York’s second-degree assault

statute, NYPL § 120.05, which we have previously ruled constitute

crimes of violence under Section 16(a). See Thompson v. Garland,

, 111–12 (2d Cir. 2021) (discussing NYPL § 120.05(1));

Singh, 939 F.3d at 462–64 (discussing NYPL § 120.05(2)). 2 Because

2 Under NYPL § 120.05(1), (2), a “person is guilty of assault in the second degree when (1) “[w]ith intent to cause serious physical injury to another person, he causes such injury to such person or to a third person;” or (2) “[w]ith intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument.”

4 NYPL § 120.10(1) contains the same intent and serious physical

injury elements as NYPL § 120.05(1), and requires the same showing

of intent to cause physical injury and use of a deadly weapon or

dangerous instrument as NYPL § 120.05(2), NYPL § 120.10(1) is also

a crime of violence under Section 16(a)’s definition, and,

therefore, an attempt to violate NYPL § 120.10(1) is an aggravated

felony under § 1101(a)(43)(F), (U).

Singh’s argument that NYPL § 120.10(1) is not a crime of

violence because the statute does not use the words “physical

force” fails because the intent to cause serious physical injury,

particularly in combination with the deadly weapon or dangerous

instrument element, necessarily encompasses the use of violent

force required under Section 16(a). See Singh,

(“[T]he deadly weapon or dangerous instrument element makes

obvious that the statute requires the use of violent force.”). We

have considered Singh’s remaining arguments and find 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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