Berroa-Soto v. Holder

316 F. App'x 27
CourtCourt of Appeals for the Second Circuit
DecidedMarch 19, 2009
DocketNo. 08-0889-ag
StatusPublished

This text of 316 F. App'x 27 (Berroa-Soto v. Holder) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Berroa-Soto v. Holder, 316 F. App'x 27 (2d Cir. 2009).

Opinion

SUMMARY ORDER

Petitioner Wander Berroa-Soto (“Ber-roa”), a citizen of the Dominican Republic, petitions for review of a January 24, 2008, 2008 WL 486860, BIA decision, No. A 56-682-953, affirming the decision of an Immigration Judge (“IJ”) dated October 3, 2007, finding Berroa removable. We assume the parties’ familiarity with the facts and procedural history of this case, and the issues presented by this petition.

Berroa was admitted to the United States on December 3, 2003, as a lawful permanent resident. On November 17, 2006, he pled guilty in Connecticut Superi- or Court to Assault in the Second Degree in violation of Conn. Gen.Stat. § 53a-60, and Assault in the Third Degree in violation of Conn. Gen.Stat. § 53a-61. Berroa was served with a Notice to Appear in August 2007 charging him with removability pursuant to section 237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii), for having been convicted of an aggravated felony, a “crime of violence,” after having been admitted. See 8 U.S.C. § 1101(a)(43)(F); 18 U.S.C. § 16 (defining “crime of violence”). The predicate crime for which Berroa was found to be removable was the Second Degree Assault conviction pursuant to Conn. Gen.Stat. § 53a-60, which reads, in pertinent part:

A person is guilty of assault in the second degree when:

(1)With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person; or
(2) with 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 other than by means of the discharge of a firearm; or
(3) he recklessly causes serious physical injury to another person by means of a deadly weapon or a dangerous instru-mente.]

Conn. Gen.Stat. § 53a-60. The IJ found this statute to be divisible because subpar-agraph (3) requires only recklessness for a conviction and is therefore not a crime of violence under 18 U.S.C. § 16. The Connecticut court’s judgment of conviction did not specify of which provision of Conn. Gen.Stat. § 53a-60 Berroa was convicted. The IJ therefore looked to the facts as stated by the prosecutor, and admitted by Berroa during his plea colloquy, to find that Berroa was not convicted under subsection (3), but was convicted under a subsection describing a “crime of violence.” The IJ found Berroa therefore removable. The BIA dismissed Berroa’s appeal.

Berroa argues that the IJ and the BIA erred in considering the facts as admitted by Berroa because they were not part of the record of conviction, and that without looking outside the record of conviction, which they are forbidden to do, they could not tell which provision was violated. He argues, then, that because he might have been convicted under section 53a-60(3), which does not describe a “crime of violence,” he was not necessarily convicted of a “crime of violence,” and he is therefore not removable.

[30]*30Whether a petitioner’s offense is a “crime of violence,” and therefore an aggravated felony, is a question of law, which we have jurisdiction to review. Canada v. Gonzales, 448 F.3d 560, 563 (2d Cir.2006). In deciding this question, we review the BIA’s decision de novo. Id.

An alien who is convicted of an “aggravated felony,” such as a “crime of violence,” 8 U.S.C. § 1101(a)(43)(F), after being admitted into the United States may be deported. 8 U.S.C. § 1227(a)(2)(A)(iii); Canada, 448 F.3d at 564. The government argues that Berroa was convicted of a crime of violence pursuant to 18 U.S.C. § 16(b). A “crime of violence” under the statute is defined as “any ... offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” 18 U.S.C. § 16(b)

We have ruled that a “categorical approach” must be used to determine whether an offense is a “crime of violence” within the meaning of section 16(b). Vargas-Sarmiento v. U.S. Dep’t of Justice, 448 F.3d 159, 166 (2d Cir.2006). As both parties acknowledge, the Connecticut statute was divisible between offenses that would constitute “crimes of violence” and those that would not. See Wala v. Mukasey, 511 F.3d 102, 109 (2d Cir.2007). Because the statute was divisible, use of what we call the “modified categorical” approach was appropriate. See Dulál-Whiteway v. U.S. Dep’t of Homeland Sec., 501 F.3d 116, 126 (2d Cir.2007). Where a statute is divisible, the court can look beyond the language of the statute “to the record of conviction for the limited purpose of determining whether the alien’s conviction was under the branch of the statute that permits removal.” Dickson v. Ashcroft, 346 F.3d 44, 48-49 (2d Cir.2003). The “ ‘record of conviction’ includes the ‘charging document, plea agreement, a verdict or judgment of conviction, and a record of the sentence or plea transcript.’ ” Vargas-Sarmiento, 448 F.3d at 167 (citation omitted).

Berroa’s argument that the BIA and IJ engaged in impermissible fact finding by considering the statements made by the prosecutor in their modified categorical analysis fails. The record of conviction includes “a plea colloquy transcript.” Wala, 511 F.3d at 108. Berroa argues that because the facts were stated by the prosecutor before the plea colloquy, they cannot be looked at in determining the statutory provision of which Berroa was convicted. But, during his colloquy with the judge, Berroa was asked if he heard the facts as stated by the prosecutor, and whether “those facts are essentially correct,” to which Berroa responded, “Yes.” Berroa thus admitted to these facts during his plea colloquy, and they are, therefore, part of the record of conviction. See id.

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316 F. App'x 27, Counsel Stack Legal Research, https://law.counselstack.com/opinion/berroa-soto-v-holder-ca2-2009.