POUGATCHEV

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                  Matter of POUGATCHEV, Respondent
                                Decided May 22, 2023

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


(1) A conviction for burglary of a building under section 140.25(1)(d) of the New York
   Penal Law is not categorically an aggravated felony burglary offense under section
   101(a)(43)(G) of the Immigration and Nationality Act, 

(a)(43)(G)
   (2018), because the statute is overbroad and indivisible with respect to the definition of
   “building” under New York law.

(2) A conviction for displaying what appears to be a pistol, revolver, rifle, shotgun,
   machine gun, or other firearm while committing burglary under section 140.25(1)(d) of
   the New York Penal Law necessarily involves the use, attempted use, or threatened use
   of physical force against the person or property of another and therefore constitutes an
   aggravated felony crime of violence under section 101(a)(43)(F) of the Immigration and
   Nationality Act, 

(a)(43)(F).

FOR THE RESPONDENT: Yuriy Pereyaslavskiy, Esquire, Albany, New York

FOR THE DEPARTMENT OF HOMELAND SECURITY:                              Donald W. Cassidy,
Associate Legal Advisor

BEFORE: Board Panel: GOODWIN and WILSON, Appellate Immigration Judges.
Concurring and Dissenting Opinion: BROWN, Temporary Appellate Immigration Judge.

GOODWIN, Appellate Immigration Judge:


    In a decision dated September 24, 2019, the Immigration Judge found the
respondent removable as charged for having been convicted of an aggravated
felony. See section 237(a)(2)(A)(iii) of the Immigration and Nationality Act
(“INA”), 

(a)(2)(A)(iii) (2018). The respondent appeals from
the Immigration Judge’s decision ordering him removed. The appeal will be
dismissed.

              I. FACTUAL AND PROCEDURAL HISTORY
   The respondent, a lawful permanent resident, was convicted in 2017 of
burglary in the second degree in violation of section 140.25(1)(d) of the New
York Penal Law. The Department of Homeland Security (“DHS”) initiated
removal proceedings against the respondent, charging him with removability
under section 237(a)(2)(A)(iii) of the INA, 

(a)(2)(A)(iii), for

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having been convicted of an aggravated felony theft or burglary offense
under section 101(a)(43)(G) of the INA, 

(a)(43)(G) (2018),
and an aggravated felony crime of violence under section 101(a)(43)(F) of
the INA, 

(a)(43)(F) (2018).
    The respondent admitted that he was convicted of burglary under section
140.25(1)(d) of the New York Penal Law and that he received a sentence of
at least 1 year imprisonment. However, he argues that his conviction is not
for an aggravated felony and does not render him removable as charged.
    The Immigration Judge found that the respondent’s conviction was for an
aggravated felony burglary offense. He did not decide whether the
respondent had been convicted of a crime of violence. For the following
reasons, we conclude that the respondent has not been convicted of an
aggravated felony theft or burglary offense as defined in section
101(a)(43)(G) of the INA, 

(a)(43)(G). However, the
respondent has been convicted of an aggravated felony crime of violence as
defined in section 101(a)(43)(F) of the INA, 

(a)(43)(F), and
is thus removable from the United States.

                                  II. ANALYSIS
   Burglary in the second degree under the New York Penal Law was
defined at all relevant times as follows:

     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.

(1)(d) (McKinney 2017).
   DHS bears the burden of proving that the respondent is removable for
having been convicted of an aggravated felony. INA § 240(c)(3)(A),
8 U.S.C. § 1229a(c)(3)(A) (2018). In determining whether the respondent
has been convicted of an aggravated felony, we employ the categorical
approach, which requires us to focus on the elements of the state offense.
Matter of Chairez, 

 (BIA 2016). “Under this approach
we look ‘not to the facts of the particular prior case,’ but instead to whether

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‘the state statute defining the crime of conviction’ categorically fits within
the ‘generic’ federal definition of a corresponding aggravated felony.”
Moncrieffe v. Holder, 

 (2013) (citation omitted).
    “By ‘generic,’ we mean the offenses must be viewed in the abstract, to
see whether the state statute shares the nature of the federal offense that
serves as a point of comparison.” 

 “Because we examine what the state
conviction necessarily involved, not the facts underlying the case, we must
presume that the conviction ‘rested upon [nothing] more than the least of
th[e] acts’ criminalized, and then determine whether even those acts are
encompassed by the generic federal offense.” 

 at 190–91 (quoting
Johnson v. United States, 

, 137 (2010)).
    We recently analyzed New York’s second degree burglary statute in
Matter of V-A-K-, 

 (BIA 2022). In that case, we concluded
that the statute “clearly is divisible.” 

 (holding that subsections (1)
and (2) describe separate crimes); see also Mathis v. United States, 

 (2016) (“A single statute may list elements in the alternative, and
thereby define multiple crimes.”). We have no reason to depart from this
prior determination, particularly because the respondent concedes he is
convicted of violating subsection (1)(d) of section 140.25 of the New York
Penal Law.

               A. Aggravated Felony Theft or Burglary Offense

    The Supreme Court of the United States has repeatedly defined generic
burglary as an “unlawful or unprivileged entry into, or remaining in, a
building or structure, with intent to commit a crime.” Quarles v. United
States, 

 (2019) (emphasis omitted) (quoting Taylor v.
United States, 

 (1990)). In Matter of V-A-K-, we analyzed
burglary of a dwelling under section 140.25(2) of the New York Penal Law
and concluded that it fell within this generic definition of burglary. 

; see also 

(3) (McKinney 2017)
(defining the term “dwelling”). Unlike under subsection (2), for all other
types of burglary under this statute, the least of the acts criminalized is
burglary of a building. See 

(2) (McKinney
2017) (defining the term “building”). We did not decide in Matter of
V-A-K- whether burglary of a building under New York law falls within the
generic definition of burglary. 

 n.7. We must now
resolve that question.1
    The Supreme Court has stated that the generic “term ‘burglary’ must
include ‘ordinary,’ ‘run-of-the-mill’ burglaries as well as aggravated ones.”
1
   Matter of V-A-K- addressed burglary of a dwelling, which is distinguishable from
burglary of a building. This case thus does not change our holding in Matter of V-A-K-.

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United States v. Stitt, 

 (2018) (citing Taylor, 

). This definition, however, is not without limits. For example, the
Supreme Court in Taylor noted that a Missouri law criminalizing the
breaking and entering of “any booth or tent, or any boat or vessel, or railroad
car” would not categorically fall within the generic definition of burglary.

 (emphasis added). In Mathis, 

, the parties
agreed that an Iowa statute covering “any building, structure, . . . land, water
or air vehicle, or similar place adapted for overnight accommodation of
persons [or used] for the storage or safekeeping of anything of value” was
broader than the generic definition of burglary. 

 (2013)
(emphasis added). 2
   We thus turn to New York’s definition of “building” in the context of
burglary and related offenses.

      “Building,” in addition to its ordinary meaning, includes any structure, vehicle or
      watercraft used for overnight lodging of persons, or used by persons for carrying on
      business 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.

(2). Parts of this provision undoubtedly fall within
the generic definition of burglary. A “structure, vehicle or watercraft used
for overnight lodging of persons” meets this definition. See United States v.
Stitt, 139 S. Ct. at 405–07. Just as plainly, however, an “inclosed motor
truck” under section 140.00(2) of the New York Penal Law falls outside the
“building or other structure” element of generic burglary because New York
law treats such trucks as “buildings” even if used only for storage or
recreation, as opposed to residential or business purposes. People v.
Thompson, 

, 264–65 (N.Y. App. Div. 2000) (holding that
“no use-based qualification applies to the question of what constitutes an
‘inclosed motor truck,’” and explaining that “[w]hile the statutory phrase
‘used by persons for carrying on business therein’ applies to the term
‘vehicle’, it does not apply to the term ‘inclosed motor truck’ set forth, in the
disjunctive, later in the same subdivision”).3

2
   The question presented in Mathis addressed the divisibility of the statute at issue, rather
than the precise definition of generic burglary. The Court did recognize that the Iowa
statute at issue reached “a broader range of places” than a building or other structure
required for a generic burglary. Mathis, 

.
3
   As the “inclosed motor truck” clause of section 140.00(2) makes New York’s burglary
statutes categorically overbroad vis-à-vis the “building or other structure” element of
generic burglary, we need not assess the scope of the statute’s “vehicle . . . used by persons
for carrying on business” clause.

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    This definition of “building” in section 140.00(2) is not further divisible.
Second degree burglary only refers to a general “building,” and there is no
indication that the specific type of building is an element that must be proven
beyond a reasonable doubt. This statutory term resembles the example given
by the Supreme Court in Mathis of a statute requiring the “use of a ‘deadly
weapon’ as an element of a crime and further provid[ing] that the use of a
‘knife, gun, bat, or similar weapon’ would all qualify.” 

.
Such a list provides “diverse means of satisfying a single element of a single
crime.” 

 Because the “statutory list is drafted to offer ‘illustrative
examples,’ . . . it includes only a crime’s means of commission.” 

.
    “[A]uthoritative sources of state law” further support our conclusion that
the term “building” is not divisible. 

 The relevant model jury instructions
for section 140.25 cut in favor of finding the definition of “building” to be
an indivisible list of means. See Matter of Salad, 

 (BIA
2020) (examining a state’s model jury instructions to determine the elements
of a criminal statute). New York has separate model jury instructions for
each provision of section 140.25, and these instructions refer to the term
“building” generally. 4 See N. Y. Crim. Jury Instr. & Model Colloquies, Penal
Law § 140.25(1)(a), (b), (c), (d) (May 2018). The instructions state that the
definition of “building” may be given “where appropriate.” Id. If the
specific nature of the building were an element rather than a means, this
instruction would necessarily always be appropriate to give. Therefore, we
conclude that the respondent’s conviction for burglary of a building under
section 140.25(1)(d) is not categorically an aggravated felony burglary
offense because the statute is overbroad and indivisible with respect to the
definition of “building” under New York law.
    Second degree burglary under New York law is also not an aggravated
felony theft offense. The Supreme Court, the courts of appeals, and this
Board have accepted a generic definition of theft as the “taking of property
or an exercise of control over property without consent with the criminal
intent to deprive the owner of rights and benefits of ownership, even if such
deprivation is less than total or permanent.” Gonzales v. Duenas-Alvarez,

 (2007) (citation omitted); see also Matter of
Garcia-Madruga, 

 (BIA 2008). Second degree
burglary under New York law involves the intent to commit a crime, and
there is no requirement that a burglar take property or otherwise exercise
control of property without consent. See 

.
Accordingly, the respondent has not been convicted of an aggravated felony
within the meaning of section 101(a)(43)(G) of the INA, 

(a)(43)(G).
4
   The instruction for section 140.25(2) of the New York Penal Law necessarily addresses
burglary of a dwelling.

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                    B. Aggravated Felony Crime of Violence

     We thus next decide whether DHS has sustained its burden to establish
that the respondent has been convicted of an aggravated felony crime of
violence. See INA § 101(a)(43)(F), 

(a)(43)(F). We
acknowledge that the Immigration Judge did not reach the aggravated felony
crime of violence issue. However, the parties had an opportunity to brief
both aggravated felony issues before the Immigration Judge. Additionally,
we requested supplemental briefing to allow the parties to address the issue,
and both parties filed supplemental briefs. 5 The issue of whether a state court
conviction categorically falls within the INA’s definition of an aggravated
felony is an issue of law we review de novo. See Matter of Cervantes Nunez,

, 239–40 (BIA 2018); 

(d)(3)(ii) (2023).
There are no underlying factual issues, as the respondent conceded that he
was convicted of violating section 140.25(1)(d) of the New York Penal Law.
Cf. Mellouli v. Lynch, 

 (2015) (“An alien’s actual conduct
is irrelevant to the inquiry . . . .”). Because there is no factual dispute and the
parties had an opportunity to brief the issue, we are persuaded that we may
reach the legal issue of whether the respondent’s conviction constitutes a
crime of violence, even though the Immigration Judge did not.
     To constitute an aggravated felony under section 101(a)(43)(F) of the
INA, 

(a)(43)(F), the respondent’s conviction has to have
been for a crime of violence under 

(a) (2018), for which the
term of imprisonment was at least 1 year. Cf. Sessions v. Dimaya, 

, 1215–16 (2018) (holding that the crime of violence provision at § 16(b)
is unconstitutionally vague in the immigration context). A crime of violence
under 

(a) is “an offense that has as an element the use,
attempted use, or threatened use of physical force against the person or
property of another.”
     In the context of the crime of violence definition under §16(a), we follow
the Supreme Court’s decisions in Stokeling v. United States, 

(2019), and Johnson v. United States, 

 (2010). See Matter of
A. Valenzuela, 

 (BIA 2021) (applying Stokeling to
determine whether a conviction is for an aggravated felony crime of
violence); Matter of E. Velasquez, 

 (BIA 2010)
(“Johnson controls our interpretation of a ‘crime of violence’ under § 16(a).”
(footnote omitted)). In Johnson, the Supreme Court held that “the phrase
‘physical force,’ means violent force—that is, force capable of causing
physical pain or injury to another person.” 559 U.S. at 140. Later, in
Stokeling, the Court clarified that the “physical force” defined in Johnson
5
   We thank the parties for their thoughtful analyses of this issue within their supplemental
briefs.

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“includes the amount of force necessary to overcome a victim’s resistance.”
139 S. Ct. at 555.
    Second degree burglary under New York law is not a categorical crime
of violence. For example, a person commits second degree burglary under
subsection (2) when he or she knowingly enters or remains unlawfully in a
dwelling with intent to commit a crime. 

(2). The
conduct underlying section 140.25(2) does not necessarily include the use,
attempted use, or threatened use of physical force against the person or
property of another. 6 As the statute is divisible and the respondent concedes
he was convicted under section 140.25(1)(d), we will determine whether a
conviction under this section is categorically a crime of violence. Cf. Stuckey
v. United States, 

 (2d Cir. 2017) (“Both the government and
Stuckey agree that he was convicted under 

(3) and
(4), and thus we must apply the categorical approach only as to these
subsections.”).
    At the time of conviction, section 140.25(1)(d) of the New York Penal
Law provided:

      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:
            ....
            (d) Displays what appears to be a pistol, revolver, rifle, shotgun, machine gun
          or other firearm . . . .

    The respondent contends that his conviction does not require that the
display of a firearm involve a victim. He contrasts New York’s burglary
statute with robbery under New York law, which has a requisite element of
forcible stealing. See United States v. Ojeda, 

 (2d Cir. 2020)
(holding that first degree robbery is a “violent felony” under the Armed
Career Criminal Act (“ACCA”) because “it is not possible to satisfy the
forcible taking element of New York robbery without physical force as
6
    We acknowledge that the United States Court of Appeals for the Second Circuit has
held a conviction under section 140.25(2) is a crime of violence for the purpose of
determining whether a defendant is subject to sentencing as a “career offender” under the
United States Sentencing Guidelines. United States v. Hendricks, 

, 331–32
(2d Cir. 2019). However, the court made clear that the determination was based upon the
residual clause. See 

. The Second Circuit specifically considered the vagueness
issue and determined that “[s]entencing [g]uidelines are not subject to void-for-vagueness
challenges.” 

 In contrast, the INA’s aggravated felony crime of violence is defined by

. As 

(b) has been determined to be unconstitutionally vague
in the immigration context, the Hendricks holding is inapplicable here. See Dimaya, 

.

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defined by the Supreme Court”). Forcible stealing is defined as when a
person “uses or threatens the immediate use of physical force upon another
person” for certain specified purposes. 

 (McKinney
2023) (emphasis added). According to the respondent, section 140.25(1)(d)
does not require that a victim be present or that the defendant be aware that
another person witnessed the display of what appears to be a pistol, revolver,
rifle, shotgun, machine gun or other firearm, and thus the statute does not
necessarily involve the use, attempted use, or threatened use of physical force
against the person or property of another. For the following reasons, this
argument is unpersuasive.
    Under New York law, in order to display what appears to be a listed
weapon, another person must be present to witness it. See People v.
Baskerville, 

 (N.Y. 1983). This requirement is
consistent with the common understanding of the word “display.” The
Merriam-Webster’s Dictionary defines “display,” in relevant part, as “to put
or spread before the view[;] . . . to make evident[;] . . . to exhibit
ostentatiously.” Display, Merriam-Webster’s Collegiate Dictionary (11th
ed. 2020) (emphasis added). The use of the word “view” necessarily implies
a viewer. The plain language in the statute of “what appears to be” also
works in conjunction with the term “display,” indicating that a person other
than the perpetrator must perceive what appears to be a weapon. New York’s
model jury instructions reflect this common understanding of the word
“display,” stating that:

      “A person DISPLAYS what appears to be a pistol, revolver, rifle, shotgun, machine
      gun or other firearm when that person consciously displays or manifests the presence
      of an object that can reasonably be perceived as a pistol, revolver, rifle, shotgun,
      machine gun or other firearm, and when the person to whom that object is displayed
      or manifested perceives it as a pistol, revolver, rifle, shotgun, machine gun or other
      firearm. It need not be shown, however, that the object displayed was in fact a pistol,
      revolver, rifle, shotgun, machine gun or other firearm.”

N.Y. Crim. Jury Instr. & Model Colloquies, Penal Law § 140.25(1)(d)
(emphasis added). These instructions contemplate that the conscious display
of what appears to be a firearm will be in front of a person. 7
   This definition of display is drawn from a line of robbery cases. See
People v Lopez, 

, 1330–31 (N.Y. 1989); Baskerville,
457 N.E.2d at 755–56. Robbery is distinct from burglary, as robbery
involves the forcible stealing from a person. See 

.
However, both robbery and burglary can have the same aggravating element

7
 The jury instructions are intended as model instructions and the drafters recognize that
certain cases might call for tailored instructions.

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of displaying what appears to be a pistol, revolver, rifle, shotgun, machine
gun, or other firearm. New York courts apply the canon of statutory
construction that “[w]here the same word or group of words is used . . . in
different statutes, if the acts are similar in intent and character[,] the same
meaning may be attached to them.” People v. Thomas, 

, 274
(N.Y. 2019) (alteration in original) (quoting People v. Duggins, 

 (N.Y. 2004)).
    Consistent with this statutory construction, New York courts have applied
the same definition of “display” for both robbery and burglary cases. In
People v. Moore, 

 (N.Y. App. Div. 1987), a New York
court described the display provision under the robbery statute as
“analogous” to the display requirement in section 140.25(1)(d) of the New
York Penal Law. Similarly, in People v. Ray, 

 (N.Y.
App. Div. 1992), the court applied the conscious display standard used in
robbery cases in vacating a first-degree burglary conviction. 8 In that case, a
defendant, in the course of a burglary, exited through a “side door carrying
the shotgun in both hands . . . using it to hold bags of other items in his arms.”

 Neither the complaining witness “nor the arresting officer testified that
they believed that they were being threatened with use of the gun.” 

 The
court found insufficient evidence that the defendant ‘“consciously
display[ed]’ the shotgun ‘with the intent of compelling an owner of property
to deliver it up or for the purpose of preventing or overcoming resistance to
the taking.’” 

 (alteration in original) (quoting Baskerville, 457 N.E.3d at
756). Even though the shotgun was visible, that visibility did not constitute
a “display” sufficient to establish culpability for burglary under New York
law.


8
  Burglary in the first degree, similar to second degree burglary, can be committed when a
defendant “[d]isplays what appears to be a pistol, revolver, rifle, shotgun, machine gun or
other firearm.” 

(4) (McKinney 1992). First degree burglary does
have the “affirmative defense that such pistol, revolver, rifle, shotgun, machine gun or other
firearm was not a loaded weapon from which a shot, readily capable of producing death or
other serious physical injury, could be discharged.” 

 However, this affirmative defense
does not “constitute a defense to a prosecution for, or preclude a conviction of, burglary in
the second degree, burglary in the third degree or any other crime.” 

 Given the plain
similarity between the statutes, the requirement of a conscious display would seem to apply
equally for first and second degree burglary. It is well-established that second degree
burglary is a lesser-included offense of first degree burglary under New York law. See
People v. Smith, 

, 500 (N.Y. App. Div. 2020) (collecting cases); People
v. Ortiz, 

, 893 (N.Y. App. Div. 2019) (same). Here, the relevant distinction
between first and second degree burglary is that the former is of a dwelling, while the latter
of a building. Compare 

(4), with 

(1)(d).
A dwelling by definition is a subset of a building. See 

(3).

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    We are thus not persuaded by the respondent’s argument that a “display”
can occur without a victim present. Although section 140.25(1)(d) does not
expressly reference a victim, any uncertainty is resolved by how New York
state courts interpret the phrase “[d]isplays what appears to be” a listed
weapon. See Gill v. INS, 

 (2d Cir. 2005) (relying on New
York state court interpretations of its own criminal laws in applying the
categorical approach). The New York Court of Appeals has required that the
display “actually be witnessed in some manner by the victim, i.e., it must
appear to the victim by sight, touch or sound that he is threatened by a
firearm.” Baskerville, 

. This requirement of a conscious
display applies in burglary cases and is fully consistent with the statutory
language of section 140.25(1)(d). See Ray, 

. New York
courts thus do not merely require a third party to be present but be an actual
victim.
    We further conclude that displaying what appears to be a firearm during
the course of a burglary necessarily involves the use, attempted use, or
threatened use of physical force. In Stuckey v. United States, the Second
Circuit examined first degree robbery under New York law and held that the
display of “what appears to be” a firearm by a fellow participant in the crime
renders the offense a violent felony under the ACCA. 878 F.3d at 70–72.
The Court reasoned that, while strict liability attached to the display of the
weapon or apparent weapon, that display, coupled with the intent to commit
a crime, satisfies the “plain text” of the ACCA, which requires the offense
have as an element “the use, attempted use, or threatened use of physical
force against the person of another.” 

 at 68–71 (citation omitted).
    This conclusion is consistent with decisions from across the federal
circuit courts. See, e.g., United States v. Carter, 

 (7th Cir.
2020) (“Brandishing a deadly weapon in the context of an assault threatens
‘force capable of causing physical pain or injury to another person.’”
(citation omitted)); United States v. Gobert, 

, 881–82 (9th Cir.
2019) (rejecting an argument that “using a display of force with a dangerous
weapon that reasonably causes a victim to fear immediate bodily injury does
not necessarily require the use or threatened use of violent force against
another”).
    The display of what appears to be a firearm while committing second
degree burglary is essentially a criminal threat of force or violence and
distinguishes this statute from a statute that covers only ordinary burglaries.
“[A] person who intends to, and does, place another in fear of imminent
physical injury by displaying what appears to be a deadly weapon has
communicated an intent to inflict physical harm and, thus, threatened the use



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of force.” United States v. Ovalle-Chun, 

 (5th Cir. 2016). 9
It is this inherent threat of violence, coupled with the intent to commit a
crime, as described in Leocal v. Ashcroft, 

, 9–10 (2004), that makes
the type of burglary at issue here a confrontational crime, and brings
subsection (1)(d) within the purview of a crime of violence as described in

(a). The confrontational nature of second degree burglary
under section 140.25(1)(d) of the New York Penal Law categorically
involves the use, attempted use, or threatened use of physical force.

                               III. CONCLUSION
    We thus conclude that a conviction for displaying what appears to be a
pistol, revolver, rifle, shotgun, machine gun, or other firearm while
committing burglary under section 140.25(1)(d) of the New York Penal Law
necessarily involves the use, attempted use, or threatened use of physical
force against the person or property of another and therefore constitutes an
aggravated felony crime of violence. The respondent is therefore removable
from the United States. Termination of his removal proceedings is not
appropriate.
    The respondent has not meaningfully appealed the Immigration Judge’s
summary denial of adjustment of status under section 245(a) of the INA,

(a) (2018), in conjunction with a waiver under section 212(h)
of the INA, 

(h) (2018). These claims are thus waived. Matter
of Garcia, 

, 693 n.1 (BIA 2023).
    Accordingly, the following order will be entered.
    ORDER: The appeal is dismissed.

CONCURRING AND DISSENTING OPINION:                              Denise G. Brown,
Temporary Appellate Immigration Judge

    I respectfully dissent from that portion of the majority opinion that holds
that second degree burglary under section 140.25(1)(d) of the New York
Penal Law is categorically an aggravated felony crime of violence under
section 101(a)(43)(F) of the Immigration and Nationality Act (“INA”),

9
   Courts have long recognized that displaying something that appears to be a weapon can
have the same consequences as displaying an actual weapon. See, e.g., United States v.
Dixon, 

 (3d Cir. 1992) (holding that a perpetrator who placed a towel
over her hand to give the appearance of having a gun “created a risk that [her] actions
would provoke a violent response by victims or the police”); United States v. Shores, 

 (11th Cir. 1992) (observing that “possession of a toy gun, by itself, can
play an integral part in the crime”).

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(a)(43)(F) (2018). As an initial matter, I have reservations
that this case is an appropriate means through which to establish binding
precedent on this issue as the Immigration Judge did not reach it. While the
parties have had an opportunity to address the issue through supplemental
briefing, we lack the benefit of the Immigration Judge’s reasoning. It is our
role to “review” questions of law de novo, 

(d)(3)(ii) (2023),
but there is no underlying decision regarding whether the respondent was
convicted of an aggravated felony crime of violence for us to review here.
    Further, I disagree with the majority’s analysis by which it concludes that
a violation of section 140.25(1)(d) of the New York Penal Law is
categorically a crime of violence. Section 140.25(1)(d) provides that 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
       . . . [i]n effecting entry or while in the building or in immediate flight therefrom,
       he or another participant in the crime
       ...
       . . . [d]isplays what appears to be a pistol, revolver, rifle, shotgun, machine gun or
       other firearm . . . .

(1)(d) (McKinney 2017). A crime of violence
under section 101(a)(43)(F) of the INA, 

(a)(43)(F), is “an
offense that has as an element the use, attempted use, or threatened use of
physical force against the person or property of another.” 

(a)
(2018).
    I disagree with the majority that second degree burglary under section
140.25(1)(d) includes as an element the use, attempted use, or threatened use
of physical force against another person. In my view, second degree burglary
under section 140.25(1)(d) does not include any element that requires the
presence of a person other than the defendant. In the absence of an element
that requires the presence of a person, the majority’s conclusion that this
offense is a crime of violence is unavailing. See Borden v. United States,

 (2021) (“The phrase ‘against another,’ when
modifying the ‘use of force,’ demands that the perpetrator direct his action
at, or target, another individual.”).
    The majority’s analysis heavily relies on case law involving robbery to
support its conclusion that second degree burglary under this subsection is a
crime of violence. But under New York law, robbery always involves
forcible stealing from a person and burglary does not. In United States v.
Ojeda, 

 (2d Cir. 2020), the Court of Appeals for the Second
Circuit rejected the defendant’s argument that it was possible to commit New
York first degree robbery with the aggravating factor of the display of an

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apparent weapon without the use, attempted use, or threatened use of
physical force. The court held that the defendant’s argument ignored the
foundational element being aggravated, i.e., forcible stealing, which is
defined in New York to include the use or threatened immediate use of
physical force upon another person. Id. at 72. Forcible stealing is an element
for every degree of robbery in New York and “that element categorically
requires the use of physical force.” Id. Thus, New York robbery always
includes as an element the use or threatened use of physical force against
another person, regardless of whether an apparent weapon is displayed.
Accordingly, the New York robbery statutes are distinguishable from the
burglary statute at issue here, and thus the case law relied upon by the
majority relating to robbery is not persuasive in this context. For the same
reason, the case law cited by the majority relating to assault is likewise
unpersuasive.
    The majority also relies on the definition of “display” in the New York
model jury instructions to conclude that a display of an apparent weapon
must be in front of a person. The majority concludes that “display” in the
context of section 140.25(1)(d) necessarily means a conscious display of an
apparent weapon to a victim. “Display” as described by the model jury
instructions does not constitute the use, attempted use, or threatened use of
physical force against another person because, as the Supreme Court
explained in Borden, “against the person of another” means “in opposition
to” and expresses “a kind of directedness or targeting” rather than being akin
to “waves crashing against the shore.” Borden, 141 S. Ct. at 1825–26.
However, the language of the model jury instructions—i.e., describing
display to be “manifest[ing] the presence of an object that can reasonably be
perceived” as a weapon—does not require the type of directedness or
targeting described in Borden. N.Y. Crim. Jury Instr. & Model Colloquies,
Penal Law § 140.25(1)(d) (May 2018). The language instead appears to
contemplate that a person be “the mere recipient” of the display. Borden,

.
    Even if the majority’s conclusion were correct that display of an apparent
weapon necessarily contemplates the presence of a person to perceive it and
that it necessarily involved conduct directed at another person as
contemplated by Borden—a conclusion not supported by the actual language
of section 140.25(1)(d)—there is nothing in the statute that requires the
person perceiving the display to be the victim of the crime, rather than a
bystander or another defendant.
    The majority’s conclusion that an offense under section 140.25(1)(d) is
categorically a crime of violence also assumes that the crime a defendant
intends to commit is necessarily a “confrontational crime.” But there is
nothing in the statute that connects the display of an apparent weapon with

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the crime the defendant has “intent to commit [in the building],” and thus
nothing in the statute that requires the crime a defendant has “intent to
commit [in the building]” to be a confrontational crime, as the majority
concludes. 

.
    For these reasons, I am not persuaded by the majority’s conclusion that
an offense under section 140.25(1)(d) of the New York Penal Law is
categorically a crime of violence. I would instead conclude that it is not and
that therefore the respondent is not removable as charged.




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