Kondjoua v. Barr

961 F.3d 83

Chrysostome Tsafack KONDJOUA, Petitioner,

v.William P. BARR, United States Attorney General, Respondent.

Docket No. 16-296

August Term, 2019

United States Court of Appeals, Second Circuit.

Argued: August 22, 2019

Decided: May 28, 2020

Tadhg Dooley, Wiggin and Dana LLP (Jessica Garland, Yena Lee, Law Students, Appellate Litigation Project, Yale Law School, on the brief, Benjamin M. Daniels, Wiggin and Dana LLP, on the brief), New Haven, Connecticut, for Petitioner.

Jessica A. Dawgert, Senior Litigation Counsel, Office of Immigration Litigation (Joseph H. Hunt, Assistant Attorney General, Erica B. Miles, Senior Litigation Counsel, on the brief), United States Department of Justice, Washington, D.C., for Respondent.

Before: Hall, Livingston, Circuit Judges, and Restani,¹ Judge.

Per Curiam:

Petitioner Chrysostome Tsafack Kondjoua seeks review of a January 12, 2016 decision of the Board of Immigration Appeals ("BIA") affirming a September 14, 2015 decision of an Immigration Judge ("IJ") ordering him removed to his native Cameroon because his conviction for sexual assault in the third degree in violation of Connecticut General Statutes ("CGS") § 53a-72a(a)(1) was an aggravated felony crime of violence as defined in 18 U.S.C. § 16(b). Subsequently, in Sessions v. Dimaya , ––– U.S. ––––, 138 S. Ct. 1204, 200 L.Ed.2d 549 (2018), the Supreme Court held that the definition of crime of violence in § 16(b) as incorporated into the Immigration and Nationality Act was unconstitutionally void for vagueness. We decline to remand for the BIA to determine whether Kondjoua's conviction for Connecticut third-degree sexual assault constitutes an aggravated felony crime of violence under the alternative definition in 18 U.S.C. § 16(a) because that issue is a question of law that we decide de novo and the interpretation of a state criminal statute is not within the BIA's area of expertise. We further hold that Kondjoua's statute of conviction, CGS § 53a-72a(a)(1), which requires use of a dangerous instrument, actual physical force or violence, or superior physical strength, necessarily includes the use or threatened use of violent force as an element, and thus categorically constitutes an aggravated felony crime of violence as defined in 18 U.S.C. § 16(a).

BACKGROUND

In 2010, Kondjoua, a native and citizen of Cameroon, was admitted to the United States as a lawful permanent resident. Five years later, in 2015, he was convicted, pursuant to a guilty plea, of sexual assault in the third degree in violation of CGS § 53a-72a(a)(1) and was sentenced to five years’ imprisonment. Based on that conviction, the U.S. Department of Homeland Security charged Kondjoua as removable (1) under 8 U.S.C. § 1227(a)(2)(A)(iii), for having been convicted of an aggravated felony crime of violence as defined in 18 U.S.C. § 16 that carried a term of imprisonment of at least one year, pursuant to 8 U.S.C. § 1101(a)(43)(F), and (2) under 8 U.S.C. § 1227(a)(2)(A)(i), for having been convicted of a crime involving moral turpitude.

Kondjoua applied for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"), asserting political persecution in Cameroon. Following a hearing, the IJ concluded that Kondjoua's conviction was categorically an aggravated felony crime of violence as defined in 18 U.S.C. § 16(b), and that, given his sentence of five years, it was also per se a particularly serious crime, which barred him from asylum and withholding of removal. The IJ found it unnecessary, therefore, to reach the alternative basis for removability—that Kondjoua's conviction constituted a crime involving moral turpitude. The IJ denied deferral of removal under the CAT, finding that Kondjoua failed to satisfy his burden of showing a likelihood of torture in Cameroon. The BIA affirmed the IJ's decision and declined to remand for consideration of evidence submitted on appeal. This petition followed.

The determination that Kondjoua was removable for having been convicted of an aggravated felony crime of violence as defined in 18 U.S.C. § 16(b) is invalid in view of the Supreme Court's holding in Dimaya that the definition of crime of violence in § 16(b) is void for vagueness. Accordingly, the issues before us are whether we should decide in the first instance that a conviction under CGS § 53a-72a(a)(1) falls categorically under the definition of crime of violence in § 16(a), which was not invalidated by Dimaya , and whether under Connecticut law such conviction requires the use or threatened use of force capable of causing pain or injury as required to satisfy § 16(a).²

DISCUSSION

Our jurisdiction is limited to constitutional claims and questions of law because Kondjoua was ordered removed for an aggravated felony. See 8 U.S.C. §§ 1252(a)(2)(C), (D). We have jurisdiction to review the agency's legal determination that Kondjoua's conviction for third-degree sexual assault in violation of CGS § 53a-72a(a)(1) constitutes an aggravated felony crime of violence. See Gertsenshteyn v. U.S. Dep't of Justice , 544 F.3d 137, 142 (2d Cir. 2008). Our review is de novo. Prus v. Holder , 660 F.3d 144, 146 (2d Cir. 2011) (per curiam).

The Immigration and Nationality Act classifies as an aggravated felony a "crime of violence" punishable by at least one year of imprisonment and defines "crime of violence" by referring to 18 U.S.C. § 16. See 8 U.S.C. § 1101(a)(43)(F). In turn, 18 U.S.C. § 16 defines a "crime of violence" as "(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other 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." The agency concluded that Kondjoua's statute of conviction constituted a crime of violence under the definition in § 16(b), but the Supreme Court has since found that definition unconstitutionally void for vagueness. See Dimaya , 138 S. Ct. at 1215-16. As the parties recommend, we decline to remand for the agency to consider in the first instance whether CGS § 53a-72a(a)(1) categorically satisfies the alternative definition of crime of violence in § 16(a). The issue of whether a state criminal statute is a crime of violence under § 16(a) is a question of law that we decide de novo, and the interpretation of a state criminal statute is outside the BIA's area of expertise. See Banegas Gomez v. Barr , 922 F.3d 101, 107 (2d Cir. 2019) ("[N]othing requires that we convert judicial review of agency action into a ping-pong game and remand is not required when it would be an idle and useless formality." (internal quotation marks, brackets, and ellipsis omitted)); see also Jobson v. Ashcroft , 326 F.3d 367, 371 (2d Cir. 2003) ("[W]e review de novo the BIA's interpretation of criminal statutes over which it has no special expertise.").

In determining whether a state conviction constitutes an aggravated felony crime of violence, we employ a categorical approach, under which "we consider the offense generically, that is to say, we examine it in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion." United States v. Beardsley , 691 F.3d 252, 259 (2d Cir. 2012). "Under the plain language of § 16(a), one of the elements of a crime of violence must be ‘the use, attempted use, or threatened use of physical force against the person or property of another.’ " Blake v. Gonzales , 481 F.3d 152, 156 (2d Cir. 2007) (quoting 18 U.S.C. § 16(a) ). "[T]he phrase ‘physical force’ means violent force—that is, force capable of causing physical pain or injury to another person." Johnson v. United States , 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) (interpreting a provision of the Armed Career Criminal Act identical to § 16(a) ); see also Leocal v. Ashcroft , 543 U.S. 1, 11, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004) ("The ordinary meaning of th[e] term [crime of violence], combined with § 16 ’s emphasis on the use of physical force against another person (or the risk of having to use such force in committing a crime), suggests a category of violent, active crimes ...."). Such force "includes the amount of force necessary to overcome a victim's resistance" and "unjust or improper force," Stokeling v. United States , ––– U.S. ––––, 139 S. Ct. 544, 553, 202 L.Ed.2d 512 (2019) (internal quotation marks and emphasis omitted), but must be more than "the merest touching," Johnson , 559 U.S. at 139, 130 S.Ct. 1265.

Kondjoua's statute of conviction, CGS § 53a-72a(a)(1), provides that "[a] person is guilty of sexual assault in the third degree when such person (1) compels another person to submit to sexual contact (A) by the use of force against such other person or a third person, or (B) by the threat of use of force against such other person or against a third person, which reasonably causes such other person to fear physical injury to himself or herself or a third person."³ Connecticut defines "[u]se of force" as "(A) [u]se of a dangerous instrument; or (B) use of actual physical force or violence or superior physical strength against the victim." CGS § 53a-65(7). Kondjoua admits, as he must, that by its plain language the phrase "use of ... violence" in CGS § 53a-65(7) satisfies the crime of violence definition of § 16(a). See Johnson , 559 U.S. at 140, 130 S.Ct. 1265. At issue then is whether the remaining phrases in CGS § 53a-65(7), "use of a dangerous instrument," use of "superior physical strength," and "use of actual physical force," as defined by Connecticut law, satisfy the definition of a crime of violence under § 16(a). We hold that they do.

We have already held that "[u]se of a dangerous instrument," as defined by Connecticut law, constitutes violent force. Villanueva v. United States , 893 F.3d 123, 128–29 (2d Cir. 2018)....