BIA Holds That A Conviction For Burglary Of A Building Under New York Penal Law §140.25(1)(d) Is Not Categorically An Aggravated Felony Burglary Offense Under INA §101(a)(43)(G) Because The Statue Is Overbroad And Indivisible With Respect To The Definition Of “Building” Under New York Law. A Conviction For Displaying What Appears To Be A Pistol, Revolver, Rifle, Shotgun, Machine Gun, Or Other Firearm While Committing A Burglary Under §140.25(1)(d) Necessarily Involves The Use, Attempted Use, Or Threatened Use Of Physical Force Against The Person Or Property Of Another And Therefore Constitutes An Aggravated Felony Crime Of Violence Under INA §101(a)(43)(F).
On May 22, 2023, the Board of Immigration Appeals (BIA or Board) dismissed the appeal of an order of removal by an Immigration Judge (IJ) which concluded Respondent had been convicted of an aggravated felony and was thus removable under INA §237(a)(2)(A)(iii). Respondent was convicted of second degree burglary per New York Penal Law §140.25(1)(d) and DHS began removal proceedings, charging him with removability under INA §237(a)(2)(A)(iii) for conviction of an aggravated felony theft or burglary offense under INA §101(a)(43)(G) and an aggravated felony crime of violence per INA §101(a)(43)(F). Respondent admitted the burglary conviction and sentence of at least 1 year of imprisonment but contended the conviction was not for an aggravated felony and did not make him removable. The IJ disagreed but did not decide whether Respondent had been convicted of a crime of violence. The BIA found he had not been convicted of an aggravated felony theft or burglary offense, but had been convicted of an aggravated crime of violence.
In beginning its analysis, the Board explained that at all relevant times New York Penal Law defined burglary in the second degree as requiring one to:
Knowingly enter or remain unlawfully in a building with intent to commit a crime therein, when:
1. In effecting entry or while in the building or in immediate flight therefrom, he or another participant in the crime:
a. Is armed with explosives or a deadly weapon; or
b. Causes physical injury to any person who is not a participant in the crime; or
c. Uses or threatens the immediate use of a dangerous instrument; or
d. Displays what appears to be a pistol, revolver, rifle, shotgun, machine gun, or other firearm; or
2. The building is a dwelling.
The decision next noted that DHS bears the burden of proving Respondent is removable for an aggravated felony conviction. In determining whether one has been convicted of an aggravated felony, the BIA employs the categorical approach, focusing on the elements of the state offense, looking not to the facts, but “whether the state statute defining the crime of conviction categorically fits within the ‘generic’ federal definition of a corresponding aggravated felony.” The Board presumes that the conviction rests upon nothing more than the least of the acts criminalized and then determines whether even those acts are encompassed by the generic federal offense.
New York’s second degree burglary statute was most recently analyzed in Matter of V-A-K-, 28 I&N Dec. 630 (BIA 2022), where it was concluded that the statue is clearly divisible; the BIA saw no reason to depart from this prior determination.
As to the theft or burglary offense, the opinion stated that the U.S. Supreme Court has repeatedly defined generic burglary as an “unlawful unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” Matter of V-A-K- had analyzed burglary of a “dwelling” (as opposed to burglary of a “building”) under New York Penal Law §140.25(2) and concluded that it fell within the generic definition of burglary. The
Board noted that, unlike under subsection (2), for all other types of burglary under the statute, the least of the acts criminalized is burglary of a building; V-A-K- did not decide whether “burglary of a building under New York law falls within the generic definition of burglary” and that question now had to be resolved.
Turning to New York’s definition of “building” in the context of burglary, the BIA found that the term includes “any structure, vehicle or watercraft used for overnight lodging … or used for carrying on business … or used as an elementary or secondary school, or an inclosed motor truck”. The decision explained that, while parts of this statute “undoubtably fall within the generic definition of burglary”, an “inclosed motor truck” falls outside of the “building or other structure” element of generic burglary as New York law treats such trucks as buildings “even if used only for storage or recreation, as opposed to residential or business purposes.”
Additionally, this definition of “building” is not further divisible, as second degree burglary refers only to a general “building” and there is no indication that the specific type of building is an element that must be proven beyond a reasonable doubt. The Board therefore concluded that Respondent’s second degree burglary conviction under §140.25(1)(d) is not categorically an aggravated felony burglary offense because the statute is overbroad and indivisible with respect to the definition of “building” under New York law. Nor is a New York second degree burglary conviction an aggravated felony theft offense. All courts use a generic definition of theft: the taking of property or an exercise of control over property without consent, with the criminal intent to deprive the owner of the rights and benefits of ownership, even if such deprivation is less that total or permanent. Yet New York second degree burglary involves the intent to commit a crime, and “there is no requirement that a burglar take property otherwise exercise control of property without consent.” As such, Respondent was not convicted of an aggravated felony within the meaning of INA §101(a)(43)(G).
Next, in deciding whether DHS has sustained its burden to establish that Respondent had been convicted of an aggravated felony crime of violence, the decision first noted that he had “conceded that he was convicted of violating” §140.25(1)(d). (As there was no factual dispute and the parties had had an opportunity to brief the issue, the BIA announced it would reach the legal issue of whether this conviction categorically constituted a crime of violence, even though the IJ had not.) For a conviction to be an aggravated felony under INA §101(a)(43)(F), it has to constitute a crime of violence per 18 U.S.C. §16(a), for which the term of imprisonment was at least 1 year; such a crime must require as an element the use, attempted use, or threatened use of physical force against another or the property of another.
Further, stated the Board, second degree burglary under New York law is not a categorical crime of violence as one can be convicted under subsection (2) for merely entering or remaining unlawfully in a dwelling with the intent to commit a crime; conduct underlying this subsection “does not necessarily include the use, attempted use, or threatened use of physical force against the person or property of another.” At the time of conviction, §140.25(1)(d) provided that one is guilty of burglary in the second degree under the New York Penal Law when he knowingly enters or remains unlawfully in a building with intent to commit a crime therein, and when:
1. In effecting entry or while in the building or in immediate flight therefrom, he or another participant in the crime: …
d. Displays what appears to be a pistol, revolver, rifle, shotgun, machine gun, or other firearm…
Respondent contended that this subsection did not require that a victim be present or that the defendant be aware that another person witnessed the display of what appeared to be one of the required firearms and, therefore, the law did not necessarily involve the use, attempted use, or threatened use of physical force against the person or property of another; the opinion found this claim unpersuasive. Under New York law, the “display” of what appears to be a weapon requires another person to be present to witness it. The word “view” implies a viewer. The state’s model jury instructions “contemplate that the conscious display of what appears to be a
firearm will be in front of a person.” Also, the same definition of “display” is drawn from a line of New York robbery cases and state courts apply the same definition in both robbery and burglary cases.
The BIA was therefore unpersuaded by the contention that a “display” does not require that there be a victim present; although §140.25(1)(d) does not expressly reference a victim, any uncertainty “is resolved by how New York state courts interpret the phrase ‘[d]isplays what appears to be’ a listed weapon.” Additionally, the opinion found that displaying what appears to be a firearm during a burglary necessarily involves the use, attempted use, or threatened use of physical force, a conclusion “consistent with decisions from across the federal circuit courts.”
The Board explained that the display of what appears to be a firearm while committing second degree burglary is essentially a criminal threat of force or violence and “distinguishes this statute from a statute that covers only ordinary burglaries.” This inherent threat of violence, coupled with the intent to commit a crime, makes this type of burglary a “confrontational crime” and brings subsection (1)(d) within the purview of a crime of violence under 18 U.S.C. §16(a). As such, concluded the decision, a conviction under §140.25(1)(d) categorically involved the use, attempted use, or threatened use of physical force and was therefore an aggravated felony crime of violence. The appeal was dismissed.
In fairly detailed concurring and dissenting opinion, Temporary Appellate Immigration Judge (TAIJ) Denise G. Brown noted her “reservations” that this case was an appropriate vehicle to establish binding precedent on the issue of whether New York second degree burglary is categorically an aggravated felony crime of violence under INA §101(a)(43)(F), as the IJ had not reached it. Additionally, she disagreed with the majority’s analysis in this regard.
In TAIJ Brown’s view, the subsection did not include any element that required the presence of a person other than the defendant; as such, §140.25(1)(d) cannot be a crime of violence.
Further, she disagreed that the definition of “display” in the state model jury instructions required that “a display of an apparent weapon must be in front of a person.” It was enough that another person be “the mere recipient” of the display. Even if the majority were correct, she argued, there was nothing in the state that required the person perceiving the display to be the victim of the crime, rather than a bystander or another defendant. Further, the statue did not require that the crime a defendant intended to commit in the building “be a confrontational crime.” She would have instead concluded that §140.25 is not a categorical crime of violence and Respondent thus not removable as charged. Matter of Pougatchev, 28 I&N Dec. 719 (BIA 2023).