U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office of the Clerk

5107 Leesburg Pike, Suite 2000

Falls Church, Vtrg1ma 22041

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Davis, Andrew Bray OHS/ICE Office of Chief Counsel - NYD
Gibson Dunn 201 Varick, Rm. 1130
1050 Connecticut Avenue, N.W. New York, NY 10014
Washington, DC 20036-5306

Name: PETERS, LEON CHRISTOPHER A 046-422-396

Date of this notice: 3/15/2017

Enclosed is a copy of the Board's decision and order in the above-referenced case.

Sincerely,

Cynthia L. Crosby
Acting Chief Clerk

Enclosure

Panel Membe rs :
Guendelsberger, John
Kendall Clark, Molly
Pauley, Roger

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index

Cite as: Leon Christopher Peters, A046 422 396 (BIA March 15, 2017)

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I , U.S. '1epartment of Justice Decision of the Board oflmmigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A046 422 396 - New York, NY Date:

MAR 152017
In re: LEON CHRISTOPHER PETERS

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Andrew B. Davis, Esquire

ON BEHALF OF OHS: Kamephis Perez

Assistant Chief Counsel

CHARGE:

Notice: Sec. 237(a)(2)(C), l&N Act [8 U.S.C. 1227(a)(2)(C)] -

Convicted of firearms or destructive device violation

APPLICATION: Termination

The respondent has appealed the Immigration Judge's decision of July 19, 2016,
incorporating by reference a prior decision of February 8, 2016, denying the respondent's motion
to terminate. The Department of Homeland Security (OHS) has filed a brief in opposition to the
appeal, to which the respondent has submitted a brief in response. The appeal will be sustained
and these proceedings will be terminated.

We defer to an Immigration Judge's findings of fact unless they are clearly erroneous, and all
other issues,. including the application of law and the exercise of discretion, we review under a
de novo standard. 8 C.F.R. 1003.l(d)(3)(i), (ii).

The respondent was convicted of Criminal Possession of a Weapon in the Fourth Degree, in
violation of New York Penal Law 265.01. At the time of the respondent's conviction, this
statute allowed for a conviction of anyone if:

(I) He possesses any firearm, electronic dart gun, electronic stun gun, gravity knife,
switchblade knife, pilum ballistic knife, metal knuckle knife, cane sword, billy,
blackjack, bludgeon, metal knuckles, chuka stick, sand bag, sandclub, wrist-brace type
slingshot or slungshot, shirken or "Kung Fu star"; or

(2) He possesses any dagger, dangerous knife, dirk, razor, stiletto, imitation pistol, or any
other dangerous or deadly instrument or weapon with intent to use the same unlawfully
against another; or

(3) He or she knowingly has in his or her possession a rifle, shotgun or fireann in or upon
a building or grounds, used for educational purposes, of any school, college or university,
except the forestry lands, wherever located, owned and maintained by the State
Cite as: Leon Christopher Peters, A046 422 396 (BIA March 15, 2017)
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' A046 422 396

University of New York college of environmental science and forestry, or upon a school
bus as defined in section one hundred forty-two of the vehicle and traffic law, without the
written authorization of such educational institution; or

(4) He possesses a rifle or shotgun and has been convicted of a felony or serious offense;
or

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(5) He possesses any dangerous or deadly weapon and is not a citizen of the United
States; or

(6) He is a person who has been certified not suitable to possess a rifle or shotgun, as
defined in subdivision sixteen of section 265.00, and refuses to yield possession of such
rifle or shotgun upon the demand of a police officer; or

(7) He knowingly possesses a bullet containing an explosive substance designed to

detonate upon impact, or

(8) He possesses any armor piercing ammunition with intent to use the same unlawfully
against another.

Some of these subsections contain portions which are not related to the acts "of purchasing,
selling, offering for sale, exchanging, using, owning, possessing, or carrying [...] any weapon,
part, or accessory which is a firearm or destructive device." See section 237(a)(2)(C) of the
Immigration and Nationality Act, 8 U.S.C. 1227(a)(2)(C); see also 18 U.S.C. 92l(a).
Accordingly, the Immigration Judge properly concluded that the statute did not categorically
establish removability under section 237(a)(2)(C) of the Act.

The record of conviction does not specify the subsection under which the respondent was
convicted. The Immigration Judge concluded that the respondent was convicted of a firearms
offense under NYPL 265.01(1) because a certificate of disposition includes a handwritten
remark that the weapon was a "loaded hand gun" and because the respondent was initially
charged with Criminal Use of a Firearm in the First Degree in violation of New York Penal Law
265.09(01), which is categorically a firearms offense (I.J. Decision of Feb. 8, 2016, at 6-7).
Yet neither of these facts identifies the particular subsection of NYPL 265.01 under which the
respondent was ultimately convicted. Even where the specific facts alleged might logically
support one or more particular subsections over others, that assumptive reasoning is insufficient
to establish the particular statutory language underlying the conviction. Moreover, even if the
respondent was convicted under NYPL 265.01(1), that subsection does not itself categorically
fall within section 237(a)(2)(C) of the Act, as it includes knives and "plastic knuckles," among
other items. Jury instructions for this subsection do not indicate that a fact-finder must identify
which item on the list of prohibited items a defendant possessed. See 2 Charges to Jury &
Requests to Charge in Crim. Case in N.Y. 83:12 (Oct. 2016); see also Mathis v. United States,
136 S.Ct. 2243 (2016).

2
Cite as: Leon Christopher Peters, A046 422 396 (BIA March 15, 2017)
' .
' A046 422 396

Accordingly, we agree with the respondent that the record of conviction is insufficient to
establish that he was convicted of an offense which falls under section 237(a)(2)(C) of the Act.
The OHS has not met its burden of establishing the respondent's removability.

The OHS contends the categorical approach is inappropriate for section 237(a)(2)(C) of the
Act, and that we should instead apply a "circumstance-specific" approach taking into

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consideration the specific acts and assertions underlying the respondent's conviction. This
argument is foreclosed by prior case law. See Lanferman v. Board ofImmigration Appeals, 516
F.3d 84 (2d Cir. 2009); Matter of Chairez, 26 l&N Dec. 349, 355-58 (BIA 2014) (order vacated
in part on a separate ground by Matter of Chairez, 26 I&N Dec. 478 (BIA 2015)); see also
Moncrieffe v. Holder, 133 S.Ct. 1678, 1693 (2013).

We accordingly enter the following orders.

ORDER: The respondent's appeal is sustained.

FURTHER ORDER: These proceedings are terminated.

kt F <

Cite as: Leon Christopher Peters, A046 422 396 (BIA March 15, 2017)
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)

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
201 VARICK STREET
NEW YORK, NEW YORK

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File No.: A046-422-396

In the Matter of:

PETERS, Leon Christopher, IN REMOVAL PROCEEDINGS

The Respondent.

CHARGE: Section 237(a)(2)(C) of the Immigration and Nationality Act ("INA")

(Firearms Offense)

APPLICATION: Motion for a Final Order

ON BEHALF OF THE RESPONDENT ON BEHALF OF OHS

Andrew Davis, Esq. Sarah B. Campbell, Esq.
Gibson, Dunn & Crutcher LLP Assistant Chief Counsel
1050 Connecticut Avenue, N.W. 201 Varick Street
Washington, DC 2003 New York, NY 10014

DECISION AND ORDER OF THE IMMIGRATION JUDGE

Leon Christopher Peters ("the Respondent") is a native and citizen of Guyana. (Exhibit
("Ex." 1). He was admitted to the United States ("U.S.") on November 19, 1997 at New York,
New York as a lawful permanent resident ("LPR"). Id. On November 7, 2011 he pled guilty to
Criminal Possession of a Weapon in the Fourth Degree, in violation of New York Penal Law
("NYPL") 265.01. (Exs. 2; 3; 9; 12-14).

On March 23, 2012, the Department of Homeland Security ("DHS") served the
Respondent with a Notice to Appear ("NT A"}, charging him with removability pursuant to INA
237(a)(2)(C), as alien who, after admission, was convicted of a firearms offense. (Ex. I). On
June 29, 2012, a prior Immigration Judge ("IJ") found that removability had not been established
by clear and convincing evidence and terminated proceedings without prejudice. On November
15, 2012, the Board of Immigration Appeals ("BIA") reversed the IJ's decision and found that
the Respondent was removable as charged. The prior IJ ordered him removed to Guyana on
June 14, 2013, and he was removed in January 2014. According to his counsel, the Respondent
has and continues to remain in Guyana throughout the pendency of these proceedings. 1

1 The Court previously granted counsel's motion to waive the Respondent's appearance.
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\ ,
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In light of intervening case law and a remand from the Second Circuit Court of Appeals,
on Jul y 16, 2015 the BIA remanded proceedings to this Court to reconsider the Respondent's
removability. In a decision dated February 8, 2016, the Court denied the Respondent's motion to
terminate, finding that the record of conviction established by clear and convincing evidence that
he was convicted of a firearms offense and therefore removable under INA 237(a)(2)(C). On
March 31, 2016, the BIA declined to adjudicate the Respondent's interlocutory appeal and

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ordered the record returned to this Court. At a hearing on April 12, 2016, counsel for the
Respondent requested a final order to complete these proceedings and to preserve his right to
appeal the Court's decision on the merits.

In light of the foregoing, the Court reincorporates its February 8, 2016 denial of the
Respondent's motion to terminate and clarifies that these removal proceedings are final and
complete.

Accordingly, based on the foregoing, the following Order is entered:

ORDER

IT IS HEREBY ORDERED that the Respondent's removal proceedings are.completed by the

Immigration Court.

Date