17-3482 Parris v. Whitaker BIA Montante, IJ A030 829 477 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 19th day of December, two thousand eighteen.
PRESENT: REENA RAGGI, PETER W. HALL, RICHARD J. SULLIVAN, Circuit Judges. _____________________________________
LAWRENCE PARRIS, Petitioner,
v. 17-3482
MATTHEW G. WHITAKER, ACTING UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________
FOR PETITIONER: Stephen K. Tills, Orchard Park, NY.
FOR RESPONDENT: Chad A. Readler, Acting Assistant Attorney General; Brianne Whelan Cohen, Senior Litigation Counsel; Robbin K. Blaya, 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 is DENIED.
Petitioner Lawrence Parris, a native and citizen of Trinidad
and Tobago, seeks review of a September 29, 2017 decision of the
BIA affirming a December 12, 2013 decision of an Immigration Judge
(“IJ”) ordering Parris’s removal, and finding him ineligible for
relief therefrom. In re Lawrence Parris, No. A 030 829 477 (B.I.A.
Sept. 29, 2017), aff’g No. A 030 829 477 (Immig. Ct. Buffalo Dec.
12, 2013). We assume the parties’ familiarity with the underlying
facts and procedural history, which we reference only as necessary
to explain our decision to affirm.
We have reviewed the IJ’s decision as supplemented by the
BIA. Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).
Although our review is limited to constitutional claims and
questions of law, 8 U.S.C. § 1252(a)(2)(C)-(D), Parris’s
removability and statutory eligibility for relief from removal are
questions of law that we review de novo, Pierre v. Holder, 588
F.3d 767, 772 (2d Cir. 2009).
In 1994, Parris was convicted of first-degree robbery under
New York Penal Law (“NYPL”) § 160.15(3) and sentenced to three to
nine years’ imprisonment. After serving his term of imprisonment,
Parris began a career as an airplane mechanic. In 2003, he was
convicted under 18 U.S.C. § 1036 of entering or attempting to enter 2 the secure area of an airport by fraud or false pretenses,
specifically, lying about his robbery conviction, and was
sentenced to one year of probation. In 2008, on returning from
abroad, Parris was placed in removal proceedings based on his
criminal convictions, both of which were charged as crimes
involving moral turpitude (“CIMT”s). See 8 U.S.C.
§ 1182(a)(2)(A)(i)(I).
The sole issue on appeal is whether Parris’s 2003 conviction
for entry by false pretenses pursuant to 18 U.S.C. § 1036(a)(3) is
a CIMT.1 If so, this conviction renders Parris removable and bars
relief under former Immigration and Nationality Act § 212(c). See
Matter of Abdelghany, 26 I. & N. Dec. 254, 261 (B.I.A. 2014)
(“[S]ection 212(c) relief is unavailable to any individual in . .
. removal proceedings who is removable by virtue of pleas or
convictions entered on or after April 1, 1997.”).
“We afford Chevron deference to the BIA’s construction of
undefined statutory terms such as ‘moral turpitude’ because of the
BIA’s expertise applying and construing the immigration laws.”
Rodriguez v. Gonzales, 451 F.3d 60, 63 (2d Cir. 2006); see Chevron,
1 The agency also determined that Parris’s robbery conviction was an aggravated felony that barred cancellation of removal. See 8 U.S.C. §§ 1101(a)(43)(F), 1229b(a)(3). Parris has waived any challenge to the aggravated felony determination. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 n.7 (2d Cir. 2005). In any event, Parris’s conviction for first-degree robbery under New York Penal Law § 160.15(3) is a crime of violence as defined in 18 U.S.C. § 16(a). Stuckey v. United States, 878 F.3d 62, 70 (2d Cir. 2017) (holding that NYPL § 160.15(3) is a “violent felony” under similar provision of Armed Career Criminal Act). 3 U.S.A, Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-44
(1984). A CIMT is an offense involving “conduct that shocks the
public conscience as being inherently base, vile, or depraved, and
contrary to the accepted rules of morality and the duties owed
between persons or to society in general.” Rodriguez, 451 F.3d
at 63 (quoting Hamdan v. I.N.S., 98 F.3d 183, 186 (5th Cir. 1996)).
The definition encompasses “crimes ‘impairing or obstructing an
important function of a department of the government by defeating
its efficiency or destroying the value of its lawful operations by
deceit, graft, trickery, or dishonest means.’” Id. (brackets
omitted) (quoting Matter of Flores, 17 I. & N. Dec. 225, 229
(B.I.A. 1980)). In Rodriguez, we deferred to the BIA’s CIMT
definition in the context of crimes that impair government
functions and held that a petitioner’s conviction for making a
materially false statement on a passport application is a CIMT
because the statute “involves deceit and an intent to impair the
efficiency and lawful functioning of the government.” Id. at 64.
Although we defer to the BIA’s definition of a CIMT, we review
de novo whether § 1036(a)(3) falls within that definition. Id.
at 63. We apply the categorical approach, focusing on “the
intrinsic nature of the offense rather than on the factual
circumstances surrounding any particular violation.” Id. (quoting
Gill v. I.N.S., 420 F.3d 82, 89–90 (2d Cir. 2005)). Thus, we look
to the elements of the statute of conviction to determine whether 4 a given crime is a CIMT. Gill, 420 F.3d at 90; see also Matter
of Silva-Trevino, 26 I. & N. Dec. 826, 831 (B.I.A. 2016).
Free access — add to your briefcase to read the full text and ask questions with AI
17-3482 Parris v. Whitaker BIA Montante, IJ A030 829 477 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 19th day of December, two thousand eighteen.
PRESENT: REENA RAGGI, PETER W. HALL, RICHARD J. SULLIVAN, Circuit Judges. _____________________________________
LAWRENCE PARRIS, Petitioner,
v. 17-3482
MATTHEW G. WHITAKER, ACTING UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________
FOR PETITIONER: Stephen K. Tills, Orchard Park, NY.
FOR RESPONDENT: Chad A. Readler, Acting Assistant Attorney General; Brianne Whelan Cohen, Senior Litigation Counsel; Robbin K. Blaya, 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 is DENIED.
Petitioner Lawrence Parris, a native and citizen of Trinidad
and Tobago, seeks review of a September 29, 2017 decision of the
BIA affirming a December 12, 2013 decision of an Immigration Judge
(“IJ”) ordering Parris’s removal, and finding him ineligible for
relief therefrom. In re Lawrence Parris, No. A 030 829 477 (B.I.A.
Sept. 29, 2017), aff’g No. A 030 829 477 (Immig. Ct. Buffalo Dec.
12, 2013). We assume the parties’ familiarity with the underlying
facts and procedural history, which we reference only as necessary
to explain our decision to affirm.
We have reviewed the IJ’s decision as supplemented by the
BIA. Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).
Although our review is limited to constitutional claims and
questions of law, 8 U.S.C. § 1252(a)(2)(C)-(D), Parris’s
removability and statutory eligibility for relief from removal are
questions of law that we review de novo, Pierre v. Holder, 588
F.3d 767, 772 (2d Cir. 2009).
In 1994, Parris was convicted of first-degree robbery under
New York Penal Law (“NYPL”) § 160.15(3) and sentenced to three to
nine years’ imprisonment. After serving his term of imprisonment,
Parris began a career as an airplane mechanic. In 2003, he was
convicted under 18 U.S.C. § 1036 of entering or attempting to enter 2 the secure area of an airport by fraud or false pretenses,
specifically, lying about his robbery conviction, and was
sentenced to one year of probation. In 2008, on returning from
abroad, Parris was placed in removal proceedings based on his
criminal convictions, both of which were charged as crimes
involving moral turpitude (“CIMT”s). See 8 U.S.C.
§ 1182(a)(2)(A)(i)(I).
The sole issue on appeal is whether Parris’s 2003 conviction
for entry by false pretenses pursuant to 18 U.S.C. § 1036(a)(3) is
a CIMT.1 If so, this conviction renders Parris removable and bars
relief under former Immigration and Nationality Act § 212(c). See
Matter of Abdelghany, 26 I. & N. Dec. 254, 261 (B.I.A. 2014)
(“[S]ection 212(c) relief is unavailable to any individual in . .
. removal proceedings who is removable by virtue of pleas or
convictions entered on or after April 1, 1997.”).
“We afford Chevron deference to the BIA’s construction of
undefined statutory terms such as ‘moral turpitude’ because of the
BIA’s expertise applying and construing the immigration laws.”
Rodriguez v. Gonzales, 451 F.3d 60, 63 (2d Cir. 2006); see Chevron,
1 The agency also determined that Parris’s robbery conviction was an aggravated felony that barred cancellation of removal. See 8 U.S.C. §§ 1101(a)(43)(F), 1229b(a)(3). Parris has waived any challenge to the aggravated felony determination. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 n.7 (2d Cir. 2005). In any event, Parris’s conviction for first-degree robbery under New York Penal Law § 160.15(3) is a crime of violence as defined in 18 U.S.C. § 16(a). Stuckey v. United States, 878 F.3d 62, 70 (2d Cir. 2017) (holding that NYPL § 160.15(3) is a “violent felony” under similar provision of Armed Career Criminal Act). 3 U.S.A, Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-44
(1984). A CIMT is an offense involving “conduct that shocks the
public conscience as being inherently base, vile, or depraved, and
contrary to the accepted rules of morality and the duties owed
between persons or to society in general.” Rodriguez, 451 F.3d
at 63 (quoting Hamdan v. I.N.S., 98 F.3d 183, 186 (5th Cir. 1996)).
The definition encompasses “crimes ‘impairing or obstructing an
important function of a department of the government by defeating
its efficiency or destroying the value of its lawful operations by
deceit, graft, trickery, or dishonest means.’” Id. (brackets
omitted) (quoting Matter of Flores, 17 I. & N. Dec. 225, 229
(B.I.A. 1980)). In Rodriguez, we deferred to the BIA’s CIMT
definition in the context of crimes that impair government
functions and held that a petitioner’s conviction for making a
materially false statement on a passport application is a CIMT
because the statute “involves deceit and an intent to impair the
efficiency and lawful functioning of the government.” Id. at 64.
Although we defer to the BIA’s definition of a CIMT, we review
de novo whether § 1036(a)(3) falls within that definition. Id.
at 63. We apply the categorical approach, focusing on “the
intrinsic nature of the offense rather than on the factual
circumstances surrounding any particular violation.” Id. (quoting
Gill v. I.N.S., 420 F.3d 82, 89–90 (2d Cir. 2005)). Thus, we look
to the elements of the statute of conviction to determine whether 4 a given crime is a CIMT. Gill, 420 F.3d at 90; see also Matter
of Silva-Trevino, 26 I. & N. Dec. 826, 831 (B.I.A. 2016).
The statute of conviction applicable to Parris provides that
“[w]hoever, by any fraud or false pretense, enters or attempts to
enter . . . any secure area of any airport” is subject to a fine
or up to 6 months’ imprisonment, or both. 18 U.S.C. § 1036(a)(3),
(b)(2) (2003). The statute defines “secure area” as “an area
access to which is restricted by the airport authority or a public
agency.” Id. § 1036(c)(1).
Section 1036(a)(3)’s requirement that entry be obtained
through fraud or false pretenses satisfies the “deceit or
dishonesty” component of the CIMT definition because it
necessarily involves “an affirmative act calculated to deceive the
government.” Rodriguez, 451 F.3d at 63 (quoting Flores, 17 I. &
N. Dec. at 229). As we held in Rodriguez, an intent to deceive,
coupled with some impairment of government functioning, whether
intended or not, satisfies the mental culpability requirement for
a CIMT. Id. The unauthorized entry into a secure area of an
airport necessarily impairs the important government function of
maintaining airport security. Legislative history shows that the
purpose of § 1036, which was enacted as part of the Enhanced
Federal Security Act of 2000, was to increase airport security.
See Pub. L. No. 106-547, 114 Stat. 2738; see also H.R. Rep. No.
106-913 (2000) (floor statements that undercover agents evaded 5 security at two major national airports using fake credentials);
146 Cong. Rec. H8570-71 (Oct. 2, 2000) (Statement of Rep. Canady)
(“This bill is an important step towards closing a major gap in
security that currently exists at our Nation’s most secure
buildings and airports . . . [w]e must do all that we can to thwart
and punish those who would threaten our public safety and national
security.”). Because the statute requires both the use of
deception and an intent to gain unauthorized entry into a secure
area, and because this unauthorized entry necessarily impairs the
government’s interest in protecting airport security, Parris’s
conviction is a CIMT. See Rodriguez, 451 F.3d at 64–65 (concluding
that conviction was a CIMT because petitioner intended to obtain
a U.S. passport by falsely representing himself as a U.S. citizen,
and that act necessarily impaired the passport office’s
functioning, even absent intent to harm the government).
We have considered Parris’s remaining arguments and find them
to be without merit. Accordingly, the petition for review is
DENIED.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court