17‐3850‐ag Santana‐Felix v. Barr BIA Sagerman, IJ A095 344 985 United States Court of Appeals for the Second Circuit AUGUST TERM 2018 No. 17‐3850 JUAN CARLOS SANTANA‐FELIX, Petitioner, v. WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL Respondent.* ARGUED: FEBRUARY 15, 2019 DECIDED: MAY 9, 2019 Before: WALKER, CHIN, SULLIVAN, Circuit Judges. Petition for a review of a decision of the Board of Immigration Appeals (“BIA”) ordering Petitioner’s removal based on a conviction for an aggravated felony. We deny the petition for review on the grounds that Petitioner’s conviction for conspiracy in the second degree to commit a felony – here, murder in the second degree – under New York law is an aggravated felony. NICHOLAS J. PHILLIPS, Prisoners’ Legal Services of New York, Albany, New York, for Petitioner. * The Clerk of Court is respectfully directed to amend the official caption to conform to the above. REBEKAH NAHAS, Trial Attorney (Joseph H. Hunt, Assistant Attorney General, Briena L. Strippoli, Senior Litigation Counsel, on the brief), Office of Immigration Litigation, United States Department of Justice, Washington, DC, for Respondent. PER CURIAM: Petitioner Juan Carlos Santana‐Felix, a native and citizen of the Dominican Republic, seeks review of the BIA’s October 24, 2017 affirmance of a June 15, 2017 decision of an Immigration Judge (“IJ”) ordering Santana‐Felix removed based on his conviction for conspiracy in the second degree, in violation of New York Penal Law (“NYPL”) § 105.15. In re Juan Carlos Santana‐Felix, No. A095 344 985 (B.I.A. Oct. 24, 2017), aff’g, No. A095 344 985 (Immig. Ct. Napanoch June 15, 2017). Because we find that Santana‐Felix’s conviction constitutes an aggravated felony, the petition for review is DENIED. I. Santana‐Felix is a native of the Dominican Republic and, since 2006, a lawful permanent resident of the United States. In 2013, he was convicted under NYPL § 105.15 for conspiracy in the second degree. An Immigration Judge ordered his removal in part based on this offense. The BIA affirmed the IJ’s order of removal based on two aggravated felony counts: an aggravated felony crime of violence under 8 U.S.C. § 1101(a)(43)(F) as defined in 18 U.S.C. § 16(b), and conspiracy to commit an aggravated felony under 8 U.S.C. § 1101(a)(43)(U). Therefore, only these two grounds are before us. 2 See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). The Supreme Court has since held that the crime of violence definition in § 16(b) is unconstitutionally void for vagueness. Sessions v. Dimaya, 138 S. Ct. 1204, 1215–16 (2018). Accordingly, the crime of violence determination cannot stand, and the only possible remaining basis for Santana‐Felix’s removal is his conviction under NYPL § 105.15 for conspiracy in the second degree to commit second‐degree murder. We review de novo whether this conviction is an aggravated felony. Pierre v. Gonzales, 502 F.3d 109, 113 (2d Cir. 2007). II. In determining whether a state conviction constitutes an aggravated felony, we generally begin by applying the categorical approach to determine “whether the state statute ...
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