Euclides Dos Santos v. Alberto Gonzales, 440 F.3d 81, 2d Cir. (2006)

440 F.
3d 81
Euclides DOS SANTOS Petitioner,

v.
Alberto GONZALES Respondent.
Docket No. 01-4199-AG.
United States Court of Appeals, Second Circuit.

Argued: October 24, 2005.
Decided: March 3, 2006.
Roberto Tschudin Lucheme, Glastonbury, CT, for Petitioner.

Andrew M. McNeela, Assistant United States Attorney for the Southern
District of New York, New York, N.Y. (Michael J. Garcia, United States
Attorney, Sara L. Shudofsky, Assistant United States Attorney, on the
brief) for Respondent.
OAKES, POOLER, and SOTOMAYOR, Circuit Judges.
POOLER, Circuit Judge.
Petitioner Euclides Dos Santos ("Dos Santos") petitions for review of the
Board of Immigration Appeals's ("BIA") August 16, 2000, order summarily
affirming the Immigration Judge's ("IJ") decision and February 16, 2000, order
removing Dos Santos from the United States as the result of his conviction
under Connecticut General Statute 53-21(a)(2). We agree with the IJ's
determination that Dos Santos's conviction under Connecticut General Statute
53-21(a)(2) is a "crime of violence," as defined by 18 U.S.C. 16(b) and thus
constitutes an "aggravated felony," pursuant to 8 U.S.C. 1101(a)(43)(F).
Because of this, we agree with the IJ that Dos Santos was appropriately subject
to deportation under 8 U.S.C. 1227(a)(2)(A)(iii). We therefore deny the
petition and affirm the BIA's order.
BACKGROUND
2
Dos Santos is a citizen of Cape Verde. He was admitted to the United States, as
a lawful permanent resident, on or about May 25, 1996, at the age of thirteen.
On January 12, 2000, Dos Santos was convicted in a Connecticut superior court
for violating Connecticut General Statutes 53-21(a)(2). C.G.S. 53-21(a)(2)
makes it a class C felony for any person to have "contact with the intimate
parts, as defined by section 53a-65, of a child under the age of sixteen years or
subjects a child under sixteen years of age to contact with the intimate parts of
such person, in a sexual and indecent manner likely to impair the health or
morals of such child." For violating this statute, Dos Santos was sentenced to
six-years imprisonment but ultimately received a suspended sentence pursuant
to an "Alternative to Incarceration Plan."
3
The events for which Dos Santos was convicted and sentenced occurred on
July 22, 1999, when Dos Santos attempted to rob two boys: a thirteen-year-old
and a ten-year-old. According to the police report, the boys were walking when
they were approached by Dos Santos. Dos Santos told the boys to give up their
bicycle or he would punch them. When the boys refused to turn over the
bicycle, Dos Santos grabbed one of the boy's arms. Dos Santos then told the
boy to take off his clothes and "suck [Dos Santos's] dick." The boy removed his
clothes and was unable to run away. At this point, Dos Santos attempted to grab
the bicycle, and the boys escaped. The police report does not expressly state
whether Dos Santos had touched either of his victim's private parts or subjected
them to contact with his before they fled.
After pleading guilty to these offenses, Dos Santos was convicted on January
12, 2000. On or about February 3, 2000, the Immigration and Naturalization
Service served Dos Santos with a Notice to Appear, charging that he was
removable as an aggravated felon pursuant to 8 U.S.C. 1227(a)(2)(A)(iii),
because his conviction under C.G.S. 53-21(a)(2) constituted a "crime of
violence," and thus he had committed an aggravated felony as defined by 8
U.S.C. 1101(a)(43)(F). Dos Santos's removal proceedings commenced before
an IJ on February 9, 2000. During these proceedings, Dos Santos admitted that
he had been convicted under C.G.S. 53-21(a)(2), but he argued that he had not
committed a "crime of violence" and thus should not be subject to deportation.
The IJ disagreed, finding that Dos Santos's violation of C.G.S. 53-21(a)(2)
constituted a "crime of violence," and he was removable as a result. Dos Santos
appealed this decision to the BIA, which summarily affirmed, and this appeal
followed.
DISCUSSION
5
Where, as here, the BIA summarily affirms the IJ pursuant to 8 C.F.R.

1003.1(e)(4)(I), we review the IJ's decision directly. Secaida-Rosales v. INS,
331 F.3d 297, 305 (2d Cir.2003). Judicial review of final orders of removal is
generally prohibited, but we retain jurisdiction to determine whether the crime

for which the individual was charged constitutes an aggravated felony. Chery v.
Ashcroft, 347 F.3d 404, 407 (2d Cir.2003); 8 U.S.C. 1252(a)(2)(D). We
review de novo the question of whether a state crime constitutes a "crime of
violence," which qualifies as an aggravated felony. Chery, 347 F.3d at 407.
6
A "crime of violence" is 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) (emphasis added). A "crime of violence" thus has two elements: it is a
felony, and it involves a substantial risk that physical force may be used during
its commission. Chery, 347 F.3d at 407. Additionally, 18 U.S.C. 16(b) `refers
only to those offenses in which there is a substantial likelihood that the
perpetrator will intentionally employ physical force.' Dalton v. Ashcroft, 257
F.3d 200, 208 (2d Cir.2001) (quoting United States v. Chapa-Garza, 243 F.3d
921, 926 (5th Cir.2001)) (emphasis added).
In determining whether a crime satisfies these requirements, we use the socalled categorical approach. Chery, 347 F.3d at 407. "Under this rubric, we
focus on the ìntrinsic nature of the offense rather than on the factual
circumstances surrounding any particular violation.'1 Accordingly, ònly the
minimum criminal conduct necessary to sustain a conviction under a given
statute is relevant,' and the factual aspects of a defendant's situation are
immaterial." Id. (quoting Dalton, 257 F.3d at 204). However, where a criminal
statute encompasses diverse classes of criminal acts some involving risk of
force but others not involving such riskwe have held that the facts of the
defendant's case may be reviewed for the limited purpose of determining under
which prong of the statute she was convicted. Dickson v. Ashcroft, 346 F.3d 44,
48-49 (2d Cir.2003) (citing Kuhali v. Reno, 266 F.3d 93, 106 (2d Cir. 2001)).
This type of statute is thus characterized as "divisible." Id. at 48.
Applying the categorical approach in Chery, we held that a defendant convicted

under another Connecticut statute, 53a-71, which criminalizes sexual assault
in the second degree, had committed a "crime of violence." Chery, 347 F.3d at
408-09. C.G.S. 53a-71 prohibits, inter alia, sexual intercourse with a person
thirteen or older but younger than sixteen when the perpetrator is more than
two years older; intercourse with someone whose mental deficiencies vitiate
his/her consent; and sexual intercourse by a psychotherapist with a patient
during the course of psychotherapy. In holding that a conviction under this
statute constituted a "crime of violence," we noted that "although a conviction
may be obtained under 53a-71 for consensual sexual intercourse and force
may not be present in all circumstances, the risk of the use of force is inherent
in each of the offenses set forth in the statute." Chery, 347 F.3d at 408
(emphasis in original). Indeed, "`[i]t matters not one whit whether the risk
ultimately causes actual harm.'" Id. (quoting United States v. Rodriguez, 979
F.2d 138, 141 (8th Cir. 1992)). It is immaterial that one may imagine various
scenarios that violate a statute, yet the perpetrator's conduct does not create a
genuine probability that force will be used. Id. What matters is that the risk of
force is inherent in the offense. Id.
9
Moreover, and most notably, "when the victim cannot consentthe statute
inherently involves a substantial risk that physical force may be used in the
course of committing the offense." Id. (emphasis in original). Thus, in Chery,
we held that because 53a-71 criminalizes sexual conduct with victims who
cannot consent because of their age, mental status, etc. the conduct that it
prohibits is inherently accompanied by a risk of violence. Id. at 408-09. Such
conduct thus constitutes a "crime of violence." Id.
10
In so holding, we emphasized that "[i]n cases involving sexual crimes against

children, courts have repeatedly recognized a substantial risk that physical force
will be used to ensure compliance." Id. at 409. This is because "[a] child has
very few, if any, resources to deter the use of physical force by an adult intent
on touching the child. In such circumstances, there is a significant likelihood
that physical force may be used to perpetrate the crime." Id. (citing UnitedStates v. Velazquez-Overa, 100 F.3d 418, 422 (5th Cir.1996)). Indeed we have
endorsed the Tenth Circuit's reasoning that "`when an older person attempts to
sexually touch a child ... there is always a substantial risk that physical force
will be used to ensure the child's compliance.'" Chery, 347 F.3d at 409 (quoting
United States v. Reyes-Castro, 13 F.3d 377, 379 (10th Cir.1993)) (emphasis
added).
11
Petitioner's reliance on Dalton, a case in which we held that not all felony
driving-while-intoxicated ("DWI") offenses are by their nature "crimes of
violence," 257 F.3d at 206, is misplaced. In Chery, we found Dalton inapposite
to sexual crimes committed against children because a DWI involves a risk of
involuntary use of force, while sexual crimes against children involve a risk of
intentional application of force. See Chery, 347 F.3d at 408. For instance, a
defendant may be convicted of a DWI "even if he or she is asleep at the wheel
of a car whose engine is not running and evidence is adduced at trial that the
vehicle never moved." Dalton, 257 F.3d at 205. Thus, the primary risk of force
inherent in a DWI offense is a risk of accidental force, whereas with crimes
prohibiting sexual acts with children, the primary risk is of intentional force.
12
The Supreme Court echoed this reasoning when it determined that a conviction
for driving under the influence ("DUI") is not a crime of violence. Leocal v.
Ashcroft, 543 U.S. 1, 125 S.Ct. 377, 382, 160 L.Ed.2d 271 (2004). In so
holding, it focused on the fact that the risk of force attendant to a DUI is a risk
of accidental force rather than a risk that force will be intentionally applied. See
id. As we have explained, the risk to which 18 U.S.C. 16(b) refers is the risk
of force, not simply the risk of harm. Jobson v. Ashcroft, 326 F.3d 367, 373-76
(2d Cir.2003).
13
In Chery, we found such risk of intentional force. We noted that, unlike a DWI
conviction, a conviction under C.G.S. 53a-71 involves affirmative conduct,
namely sexual intercourse with a protected individual. Chery, 347 F.3d at 408.
Because the individuals protected under C.G.S. 53a-71 cannot give consent,
we held that the risk of force is inherent in the nature of the crime. Id. at 409.
The same rationale applies in the instant case. As the Connecticut Supreme
Court has recognized, C.G.S. 53-21(a)(2) similarly involves an affirmative act
because it involves the deliberate touching of intimate parts. See State v. Robert
H., 273 Conn. 56, 866 A.2d 1255, 1264 n. 11 (2005). Because a child cannot
consent to such touching, the risk of force is inherent in the nature of the crime
and renders an offense under C.G.S. 53-21(a)(2) a "crime of violence."
14
Therefore, Dos Santos was convicted under a statute prohibiting an affirmative

act, the deliberate touching of a child's intimate parts. Like the statute at issue
in Chery, C.G.S. 53-21(a)(2) prohibits sexual conduct with a child. As we
stated in Chery, a child cannot consent, and thus, the risk of force is inherent in
the crime. Chery, 347 F.3d at 409. This rationale similarly governs the instant
case.
15
We note that Dos Santos's argument that Chery should not apply because Dos
Santos was also a child when he committed this crime is of no moment. We
reject his argument that cases such as Chery were concerned solely with the risk
of force stemming from the power disparity between a child victim and adult
perpetrator. Although Dos Santos correctly contends that C.G.S. 53-21(a)(2)
applies to both adult and children perpetrators, see In re John C., 20 Conn.App.
694, 569 A.2d 1154, 1156 (1990), he is incorrect that the defendant's age is
relevant to the analysis. Indeed, the statute at issue in Chery does not apply
only to adult perpetrators. Rather, the statute expressly applies to a scenario in
which a victim is thirteen, and the perpetrator is fifteen and one day. See C.G.S.
53a-71(a)(1). Moreover, the sweeping language in Chery focuses on the risk
of force inherent when the victim is a child, irrespective the age of the
perpetrator. We similarly emphasized this focus in Sutherland v. Reno, 228
F.3d 171 (2d Cir. 2000), where we noted that "the non-consent of the victim is a
touchstone for determining whether a crime ìnvolves a substantial risk that
physical force against the person'" may be used. Id. at 177 (quoting 18 U.S.C.
16(b) (emphasis added)). Thus, the fact that C.G.S. 53-21(a)(2) may apply to
perpetrators who are minors does not undermine our determination that a
violation of this statute constitutes a "crime of violence" as defined by 18
U.S.C. 16(b). Because a violation of C.G.S. 53-21(a)(2) is a "crime of
violence," the IJ correctly found that Dos Santos committed an aggravated
felony within the meaning of 8 U.S.C. 1101(a)(43)(F) and was removable
under 8 U.S.C. 1227(a)(2)(A)(iii).
CONCLUSION
16
For the foregoing reasons, we hold that a violation of C.G.S. 53-21(a)(2)

constitutes a "crime of violence" within the meaning of 18 U.S.C. 16(b) such
that it is an "aggravated felony" under 8 U.S.C. 1101(a)(43)(F), enabling
removal under 8 U.S.C. 1227(a)(2)(A)(iii). We thus deny the petition for
review and affirm the BIA's order summarily affirming the IJ's decision and
order. We note that in so holding, we intimate no opinion on whether any
subsection of C.G.S. 53-21, other than C.G.S. 53-21(a)(2), similarly
constitutes a "crime of violence."
Notes:
1
Dos Santos relies onChrzanoski v. Ashcroft, 327 F.3d 188 (2d Cir.2003) for the
proposition that we should examine the police report to determine whether an
offense meriting deportation has been committed. Reliance on this case is
misplaced. Chrzanoski actually undermines Dos Santos's argument that we
should delve into the factual specifics of the case. See id. at 193 n. 8. Indeed, in
that case, we noted that the "analysis focuses on the elements of the offense,
and district courts are not permitted to consider the specific conduct of the
individual in considering whether force was an element of the offense." Id.

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440 F.

Euclides DOS SANTOS Petitioner,

United States Court of Appeals, Second Circuit.

Roberto Tschudin Lucheme, Glastonbury, CT, for Petitioner.

Where, as here, the BIA summarily affirms the IJ pursuant to 8 C.F.R.

generally prohibited, but we retain jurisdiction to determine whether the crime

Applying the categorical approach in Chery, we held that a defendant convicted

In so holding, we emphasized that "[i]n cases involving sexual crimes against

Therefore, Dos Santos was convicted under a statute prohibiting an affirmative

For the foregoing reasons, we hold that a violation of C.G.S. 53-21(a)(2)

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