V-A-K

Cite as 

 (BIA 2022)                                  Interim Decision #4051




                        Matter of V-A-K-, Respondent
                               Decided August 17, 2022

                           U.S. Department of Justice
                    Executive Office for Immigration Review
                        Board of Immigration Appeals


  A conviction for second degree burglary of a dwelling under section 140.25(2) of the
New York Penal Law is categorically a conviction for generic burglary under section
101(a)(43)(G) of the Immigration and Nationality Act (“INA”), 

(a)(43)(G)
(2018), because the statute requires burglary of a structure or vehicle that has been adapted
or is customarily used for overnight accommodation. United States v. Stitt, 

(2018), followed.
FOR THE RESPONDENT: Anne E. Doebler, Esquire, Buffalo, New York
FOR THE DEPARTMENT OF HOMELAND SECURITY: Sydney V. Probst, Assistant
Chief Counsel
BEFORE: Board Panel: WILSON, GOODWIN, and GORMAN, Appellate Immigration
Judges.
GOODWIN, Appellate Immigration Judge:


    In a decision dated February 11, 2020, an Immigration Judge found that
the respondent was not removable as charged under section 237(a)(2)(A)(iii)
of the Immigration and Nationality Act (“INA”), 

(a)(2)(A)(iii) (2018), for having been convicted of an attempted
aggravated felony burglary offense under sections 101(a)(43)(G) and
101(a)(43)(U) of the INA, 

(a)(43)(G) and (U) (2018), and
granted his application for cancellation of removal for certain permanent
residents under section 240A(a) of the INA, 8 U.S.C. § 1229b(a) (2018). 1
The Department of Homeland Security (“DHS”) has appealed from this
decision. 2 The respondent has filed a brief in opposition to DHS’ appeal.

1
   The Immigration Judge also determined that the respondent was removable for having
been convicted of two or more crimes involving moral turpitude under section
237(a)(2)(A)(ii) of the INA, 

(a)(2)(A)(ii). The respondent has not
challenged that finding, and thus the issue is not before us.
2
   The Immigration Judge also determined that the respondent was not removable for
having been convicted of an aggravated felony crime of violence under sections
101(a)(43)(F) and 237(a)(2)(A)(iii) of the INA, 

(a)(43)(F) and
1227(a)(2)(A)(iii). DHS has not meaningfully challenged that finding and thus appeal of
that issue is waived. See, e.g., Matter of D-G-C-, 

, 297 n.1 (BIA 2021).

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The appeal will be sustained, and the respondent will be ordered removed
from the United States.

              I. FACTUAL AND PROCEDURAL HISTORY
    The respondent is a native and citizen of Ukraine 3 who is a lawful
permanent resident of the United States. On February 10, 2017, the
respondent was convicted of attempted burglary in the second degree in
violation of sections 110.00 and 140.25(2) of the New York Penal Law and
was sentenced to 2 years in prison.
    He was placed in proceedings, and the Immigration Judge found him to
be removable and granted his application for cancellation of removal for
certain permanent residents pursuant to section 240A(a) of the INA, 8 U.S.C.
§ 1229b(a). As the respondent’s removability has been established, it is the
respondent’s burden to establish eligibility for his requested relief. INA
§ 240(c)(4)(A)(i), 8 U.S.C. § 1229a(c)(4)(A)(i) (2018). An applicant who
has been convicted of an aggravated felony cannot establish eligibility for
cancellation of removal. INA § 240A(a)(3), 8 U.S.C. § 1229b(a)(3).
    On appeal, DHS argues the respondent has not established his eligibility
for cancellation of removal because his conviction for attempted burglary in
the second degree under sections 110.00 and 140.25(2) of the New York
Penal Law is categorically a conviction for attempted aggravated felony
burglary. Whether a State burglary offense is an aggravated felony is
a question of law that we review de novo. 

(d)(3)(ii) (2021).

                                    II. ANALYSIS
   Section 101(a)(43)(U) of the INA, 

(a)(43)(U), defines an
aggravated felony as “an attempt or conspiracy to commit an offense
described in” section 101(a)(43). 4 Section 101(a)(43)(G) of the INA,

3
   We acknowledge the ongoing conflict between Russia and Ukraine. The respondent
withdrew his application for withholding of removal and for protection under the
regulations implementing the Convention Against Torture before the Immigration Judge.
He has not challenged this withdrawal on appeal, nor sought to reopen this application.
Although Temporary Protected Status has been designated for Ukraine, the respondent’s
criminal record makes him ineligible for such status. Designation of Ukraine for
Temporary Protected Status, 

, 23,211 (Apr. 19, 2022); see also INA
§ 244(c)(2)(B)(i), 8 U.S.C. § 1254a(c)(2)(B)(i) (2018) (stating that an applicant is ineligible
for Temporary Protected Status if he or she “has been convicted of any felony or two or
more misdemeanors”).
4
   For purposes of establishing his eligibility for cancellation of removal, the respondent
did not argue below, nor does he argue on appeal that “attempt” under New York law is
broader than the generic definition of attempt in section 101(a)(43)(U) of the

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(a)(43)(G), in turn, defines an aggravated felony as “a theft
offense (including receipt of stolen property) or burglary offense for which
the term of imprisonment [is] at least one year.” To determine whether
burglary in the second degree under section 140.25(2) of the New York Penal
Law defines an aggravated felony burglary offense, we employ the
categorical approach, which requires us to disregard the respondent’s actual
conduct and focus instead on whether his offense of conviction—as defined
by its elements—“‘substantially corresponds’ to or is narrower than generic
burglary.” Quarles v. United States, 

 (2019) (quoting
Taylor v. United States, 

 (1990)). As the Supreme Court
of the United States has repeatedly held, “generic burglary” means an
“unlawful or unprivileged entry into, or remaining in, a building or structure,
with intent to commit a crime.” Id. at 1877 (emphasis omitted) (quoting
Taylor, 

).
    Section 140.25 of the New York Penal Law provides:

     A person is guilty of burglary in the second degree when he knowingly enters or
     remains unlawfully in a building with intent to commit a crime therein, and when:
         1. In effecting entry or while in the building or in immediate flight therefrom,
       he or another participant in the crime:
           (a) Is armed with explosives or a deadly weapon; or
           (b) Causes physical injury to any person who is not a participant in the crime;
         or
           (c) Uses or threatens the immediate use of a dangerous instrument; or
           (d) Displays what appears to be a pistol, revolver, rifle, shotgun, machine gun
         or other firearm; or
         2. The building is a dwelling.
     Burglary in the second degree is a class C felony.

Section 140.00(3) of the New York Penal Law defines “dwelling” as
“a building which is usually occupied by a person lodging therein at night.”
    The second degree burglary statute clearly is divisible. It creates
disjunctive, alternative, and distinct crimes separated by the word “or” in
subsections (1) and (2), and the two subsections have different elements that
must be proved to sustain a conviction. Mathis v. United States, 

, 512–13, 517–18 (2016); see also United States v. Makropoulos, 

 (2d Cir. 2017) (stating that there “is no dispute . . . that
[section] 140.25 is a ‘divisible’ statute that ‘contains disjunctive elements[]’”
(citation omitted)). Under a modified categorical approach, looking at the
record of conviction, it is undisputed that the respondent was convicted of

INA, 

(a)(43)(U), and we will not address the issue here. See Matter of
A-C-A-A-, 

, 352 (A.G. 2021) (permitting the Board to rely on a party’s
decision not to contest certain issues on appeal).

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attempted burglary of a dwelling under subsection (2), requiring as an
element that the building be a “dwelling.” Thus, our focus is solely on
section 140.25(2) of the New York Penal Law.
    The Immigration Judge found that section 140.25(2) is overbroad and
indivisible compared to the generic definition of burglary for two reasons.
First, a person can be prosecuted under the statute if he or she knowingly
remains unlawfully, which is defined as being “in or upon premises when he
[or she] is not licensed or privileged to do so.” 

(5)
(McKinney 2017). However, as noted, the generic definition of burglary
includes both “unlawful or unprivileged entry into, [and] remaining in,
a building.” Quarles, 

 (citation omitted).
    Citing Descamps v. United States, 

 (2013), the
respondent argues that a generic burglary requires unlawful or unprivileged
entry along the lines of a breaking and entering, and the New York statute in
this case does not require such conduct. The respondent’s argument is not
persuasive because Descamps does not stand for the proposition that an
unlawful or unprivileged entry requires breaking and entering. It merely
concluded that a State burglary statute, “‘which did not require any unlawful
or unprivileged entry (either by affirmative or passive acts of deception)’ was
non-generic.” United States v. Herrold, 

 (5th Cir. 2019)
(en banc) (citation omitted) (concluding that a Texas burglary statute
requiring entry “without the effective consent of the owner” but not
a “breaking” fell within the generic definition of burglary); see also United
States v. Stitt, 

, 299–300 (6th Cir. 2019) (“[N]othing in
Descamps necessarily suggests that ‘affirmative’ acts are the only way
a person may ‘break’ into, unlawfully enter, or remain in a habitation.”
(citing Descamps, 

)). Finally, the main issue addressed in
Descamps was whether the modified categorical approach may be applied to
a statute that was overbroad and indivisible relative to the generic definition
outlined in Taylor. Descamps, 570 U.S. at 257–58. As noted, that is not the
case here because section 140.25(2) of the New York Penal Law is divisible.
    Second, the Immigration Judge found that section 140.25(2) is indivisible
and broader than the generic definition of burglary because of the statute’s
definitions of “building” and “dwelling.” Although it is unclear, we read the
Immigration Judge’s decision as finding that the State’s definition of
“dwelling” includes the word “building,” which the Immigration Judge
suggested is overbroad relative to the Federal burglary definition. Compare

(2), 5 with 

(3). Along these

5
    Section 140.00(2) of the New York Penal Law defines a “building” as,

      in addition to its ordinary meaning, includ[ing] any structure, vehicle or watercraft
      used for overnight lodging of persons, or used by persons for carrying on business

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lines, the respondent argued below and argues on appeal that New York
incorporates a definition of “building” into his statute of conviction that is
broader than the generic definition. 6
    However, the definition of “building” at section 140.00(2) does not apply
to the alternative crime defined at section 140.25(2), under which the
respondent was convicted, because a violation of this provision necessarily
involves as an element the burglary of a subset of buildings—namely,
dwellings under section 140.00(3). 7 See, e.g., People v. Pau Luong, 

 (N.Y. 1999) (stating that one of the “elements” of second
degree burglary is “knowingly entering or remaining unlawfully in
a dwelling” (emphasis added)); People v. Quattlebaum, 

(N.Y. 1998) (distinguishing second and third degree burglary under New
York law, noting the former requires burglary of a “dwelling,” while the
latter requires burglary of a “building”); see also Ascencio-Contreras
v. Rosen, 

, 664 (2d Cir. 2021). A “building” is regarded as
a “dwelling” under New York law if it is “‘normal and ordinary’ that it was
‘used as a place for overnight lodging’ and had ‘the customary indicia of
a residence and its character or attributes.’” People v. Barney, 

 (N.Y. 2003) (citation omitted). We conclude that burglary of
a “dwelling” as defined under section 140.00(3) of the New York Penal Law
fits within the generic definition of burglary.
    The decision of the Supreme Court of the United States in United States
v. Stitt, 

 (2018), supports this conclusion. The question in that
case was whether two State statutes criminalizing burglary of
a nonpermanent or mobile structure, including a vehicle used for overnight
accommodation, defined a generic burglary offense under the Armed Career
Criminal Act (“ACCA”). 

. Citing Taylor, the Court
emphasized that “Congress intended the definition of ‘burglary’ [in the

      therein, or used as an elementary or secondary school, or an inclosed motor truck, or
      an inclosed motor truck trailer. Where a building consists of two or more units
      separately secured or occupied, each unit shall be deemed both a separate building
      in itself and a part of the main building.
6
   Before the Immigration Judge, the respondent cited other Immigration Judges’
decisions concluding that New York’s definition of “building” is overbroad.
7
   Because the respondent’s offense necessarily involved the burglary of a “dwelling,” we
need not address whether the burglary of a “building” under New York law, including the
burglary of a structure or vehicle adapted for carrying on business therein, falls within the
generic definition of burglary. See Mendoza-Garcia v. Garland, 

 (9th
Cir. 2022) (concluding that a State definition of “building,” which encompassed “any
booth, vehicle, boat, aircraft or other structure adapted . . . for carrying on business
therein,” was “not more expansive than the generic definition of burglary” (emphasis
added)).

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ACCA] to reflect ‘the generic sense in which the term [was] used in the
criminal codes of most States’ at the time the [ACCA] was passed.” Id. at
406 (second alteration in original) (quoting Taylor, 

). At that
time, “a majority of state burglary statutes covered vehicles adapted or
customarily used for lodging.” 

 The Court noted that Congress “viewed
burglary as an inherently dangerous crime because burglary ‘creates the
possibility of a violent confrontation between the offender and an occupant,
caretaker, or some other person who comes to investigate.’” 

 (quoting
Taylor, 

). Further, although the Court acknowledged that the
risk of violence is diminished if a vehicle or structure is only used for lodging
part of the time, it noted that “a burglary is no less a burglary because it took
place at a summer home during the winter, or a commercial building during
a holiday.” 

 The Court concluded that one of the State statutes at issue
categorically defined a generic burglary offense because it covered burglaries
of vehicles or structures customarily used or adapted for overnight
accommodation, “more clearly focus[ing] upon circumstances where
burglary is likely to present a serious risk of violence.” Id. at 407. 8
    Pursuant to Stitt, we hold that the respondent’s conviction for second
degree burglary of a dwelling under section 140.25(2) of the New York Penal
Law is categorically a conviction for generic burglary under section
101(a)(43)(G) of the INA, 

(a)(43)(G), because the statute
requires burglary of a “structure or vehicle that has been adapted or is
customarily used for overnight accommodation.” 

 at 403–04; 9 see also
Mendoza-Garcia v. Garland, 

 (9th Cir. 2022) (noting that
Stitt recognized “generic burglary encompasses non-traditional and
nonpermanent structures that are ‘designed or adapted for overnight use’”
(quoting Stitt, 

)).
    In support of his argument that the New York definition of “dwelling” is
overbroad relative to the generic definition of burglary, the respondent argues
that “dwelling” includes mixed-use buildings. The respondent cites New
York case law finding that burglary of a hotel employee locker room and
a museum on the first floor of the same building as the hotel was considered
burglary of a “dwelling” because the defendant had access to the hotel’s
sleeping quarters through a stairway accessible to the hotel guest rooms.
People v. McCray, 

 (N.Y. 2014).


8
    The Court remanded for further proceedings regarding the second State statute at issue.
Stitt, 139 S. Ct. at 407–08.
9
    We disagree with the respondent’s argument that applying Stitt’s holding to his case
would be impermissibly retroactive. Stitt’s holding is consistent with the Supreme Court’s
definition of burglary in Taylor, which predates the respondent’s commission of burglary.
See Centurion v. Holder, 

, 123–24 (2d Cir. 2014).

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     We are not persuaded McCray supports the respondent’s argument that
the State definition of “dwelling” is overbroad. As noted, burglary is an
inherently dangerous crime because it “creates the possibility of a violent
confrontation between the offender and an occupant, caretaker, or some other
person who comes to investigate.” Stitt, 

 (citation omitted);
see also United States v. Dodge, 

 (4th Cir. 2020) (“Stitt
implies that generic federal burglary is concerned with violent confrontations
that might arise when people are present, whether in buildings, structures, or
vehicles . . . .”). The court in McCray, 

, found that the
defendant’s access to the hotel’s sleeping quarters involved the risks inherent
in generic burglary, including “the danger of violence.”
     Moreover, under New York case law, second degree burglary of
a “dwelling” must, at a minimum, involve the burglary of a building that is
part of and accessible to an area usually occupied by a person lodging therein
at night. See People v. Carlucci, 

, 785 (N.Y. App. Div.
2021) (finding that burglary of “mixed residential/commercial buildings”
qualified as burglary of a “dwelling” where the buildings “contained
residences, and the basements the defendant broke into were not ‘so remote
and inaccessible from the living quarters that the special dangers inherent in
the burglary of a dwelling do not exist’” (quoting McCray, 

)); cf. Quattlebaum, 

 (holding that a school building
was not a “dwelling” where, despite the “existence of the bed and a chair in
two offices,” the “offices were ‘rarely’ used for overnight stays” and were
not “usually occupied by a person lodging therein at night” (emphasis
added)). Thus, section 140.25(2) defines burglary as a dangerous crime that
is likely to “create[] the possibility of a violent confrontation”—conduct that
is narrower than and fits within the Supreme Court’s definition of
generic burglary. Stitt, 

 (stating that generic “burglary
should cover places with the ‘apparent potential for regular occupancy’”
(emphasis added) (citation omitted)).
     The respondent does not dispute that his State crime is one “for which the
term of imprisonment [is] at least one year” as required by section
101(a)(43)(G). Because the respondent has not met his burden of proving he
was not convicted of an attempted aggravated felony burglary offense within
the meaning of sections 101(a)(43)(G) and (U), he is statutorily ineligible for
cancellation of removal under section 240A(a)(3) of the INA, 8 U.S.C.
§ 1229b(a)(3). See INA § 240(c)(4)(A)(i), 8 U.S.C. § 1229a(c)(4)(A)(i).
     Since the Immigration Judge found the respondent removable for having
been convicted of two or more crimes involving moral turpitude under
section 237(a)(2)(A)(ii) of the INA, 

(a)(2)(A)(ii), and the
respondent’s aggravated felony conviction bars him from the remaining
discretionary relief he requested, we will sustain DHS’ appeal and order the

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respondent removed. See Lazo v. Gonzales, 

 (2d Cir. 2006)
(per curiam) (stating that the Board may order a respondent removed where
the Immigration Judge has found the respondent removable and the Board
overturns a grant of discretionary relief). Accordingly, DHS’ appeal is
sustained, the Immigration Judge’s grant of cancellation of removal is
vacated, and the respondent is ordered removed to Ukraine.
   ORDER: The Department of Homeland Security’s appeal is sustained.
   FURTHER ORDER: The Immigration Judge’s decision is vacated,
and the respondent is ordered removed from the United States to Ukraine.




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