Pougatchev: A Conviction That Failed as Burglary but Still Counted as a Crime of Violence

You hold a green card. Years ago you were convicted of second-degree burglary in New York, and the part of the statute you pleaded to says someone in the burglary displayed what appeared to be a gun. The government says that makes you an aggravated felon, one of the worst labels in immigration law. Your lawyer has a strong answer: New York’s definition of “building” is so broad that the conviction is not burglary under federal law at all.

That answer worked, and it was not enough. The Board of Immigration Appeals agreed that the conviction was not an aggravated felony burglary. Then it held that displaying what appears to be a firearm during a burglary is a crime of violence, even though the immigration judge had never decided that question. One conviction, two labels. Beating the first did nothing about the second.

The decision is Matter of Pougatchev, 28 I&N Dec. 719, Interim Decision 4063 (BIA May 22, 2023). It drew a dissent, and the dissent’s questions are the ones a person in this position should keep asking.

One conviction, two labels

The respondent, a lawful permanent resident, was convicted in 2017 under section 140.25(1)(d) of the New York Penal Law. As the Board quoted the statute in effect then, a person committed that crime by knowingly entering or remaining unlawfully in a building with intent to commit a crime, when he or another participant “[d]isplays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm” while entering, inside or in immediate flight.

He admitted the conviction and a sentence of at least one year. Under the categorical approach, the Board asks what the crime necessarily involves and presumes the conviction rested on the least of the acts it covers.

DHS charged two kinds of aggravated felony: a theft or burglary offense under 8 U.S.C. § 1101(a)(43)(G) and a crime of violence under § 1101(a)(43)(F). DHS had the burden on both. On September 24, 2019, the immigration judge found the conviction was an aggravated felony burglary and stopped there.

An enclosed truck defeated the burglary charge

Federal “generic” burglary is unlawful entry into, or remaining in, “a building or structure, with intent to commit a crime.” The Supreme Court has said that includes ordinary burglaries but has limits. Vehicles and vessels not adapted for overnight use have long been the problem.

New York defined “building” to include, beyond its ordinary meaning, “an inclosed motor truck, or an inclosed motor truck trailer.” A New York appellate court had held that no business or residential use is required for a truck to qualify. A truck used only for storage or recreation was a “building” in New York and was outside the federal definition. The Board did not need to reach the other part of the definition, covering a vehicle used for carrying on business.

That left the question that decides these cases: Can the government look at the conviction record to see what kind of building it was? The answer turned on whether the types of building are separate elements or just different ways of committing one crime. New York’s second-degree burglary statute says only “building,” and the Board saw no sign that the type must be proved beyond a reasonable doubt. New York’s model instructions point the same way. They say the definition of “building” may be given “where appropriate.” If the type were an element, the Board reasoned, the definition would always be appropriate.

So the statute was overbroad and could not be divided on that point. The burglary label failed.

The theft label failed faster. Second-degree burglary requires intent to commit a crime inside. It does not require taking anything. The Board’s earlier decision in Matter of V-A-K-, 28 I&N Dec. 630 (BIA 2022), had held burglary of a dwelling under subsection (2) of the same statute to be generic burglary. A footnote here makes clear the two rulings coexist: A dwelling is different from a building.

The Board decided what the judge had not

The immigration judge had never ruled on crime of violence. A respondent could reasonably expect a remand. The Board reached the question itself. Whether a conviction fits a federal definition is a question of law. The parties had a chance to brief it before the judge, and the Board asked for supplemental briefs. With no factual dispute, it saw no reason to wait.

The test was 18 U.S.C. § 16(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.” The broader alternative in § 16(b) is gone, struck down as unconstitutionally vague in Sessions v. Dimaya. “Physical force” means violent force, capable of causing pain or injury, and includes the force needed to overcome a victim’s resistance, as Johnson v. United States and Stokeling v. United States explain.

Not all of New York second-degree burglary qualifies. The Board said so directly. Entering a dwelling unlawfully with criminal intent under subsection (2) does not necessarily involve force, and a footnote explains why a contrary Second Circuit sentencing decision rested on a residual clause that does not apply here. But the statute is divisible by subsection, and the respondent conceded he was convicted under (1)(d). The whole case came down to one verb.

A display needs someone to see it

His argument was clean. The statute does not mention a victim. Robbery requires force against a person, and burglary does not. A person could therefore display what looks like a gun with no one there to be threatened, or without knowing anyone saw.

The Board answered with New York law. The New York Court of Appeals, in People v. Baskerville, requires 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.” The dictionary defines “display” as to put “before the view,” which implies a viewer. The words “what appears to be” imply someone to whom it appears. New York’s model instruction requires that “the person to whom that object is displayed or manifested perceives it” as a firearm.

The Board then had to get from robbery to burglary, because Baskerville is a robbery case. New York courts give the same words the same meaning in similar statutes, and they have applied the display standard in burglary. People v. Ray shows it has bite. A burglar went out 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 to feeling threatened by the gun. The court found no display and vacated the first-degree burglary conviction. A gun that is merely visible is not enough.

That detail decided the case for the Board: A conviction under (1)(d) means someone actually perceived a threat. New York courts, it concluded, “do not merely require a third party to be present but be an actual victim.” That sentence is where the dissent attacked.

Why the Board called the display a threat

From there the Board moved quickly. As the Board described it, the Second Circuit in Stuckey v. United States, 878 F.3d 62 (2d Cir. 2017), held that New York first-degree robbery with a display of what appears to be a firearm is a violent felony under the Armed Career Criminal Act. The Board added decisions from other circuits on brandishing a weapon, including United States v. Gobert, 943 F.3d 878 (9th Cir. 2019).

The display, it wrote, is “essentially a criminal threat of force or violence.” The Fifth Circuit’s reasoning supplied the core: “[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 of force.” In our view, “intends to, and does” is the joint to press. New York’s model instruction speaks of a conscious display, and the government’s answer is the intent language Ray borrowed from the robbery cases. It makes no difference that the object may not be a gun. A footnote cites a case in which a towel over a hand was enough to create the risk of a violent response.

The threat, joined with the intent to commit a crime, made this a “confrontational crime.” The label stuck. He was removable. The Board dismissed the appeal. His applications for adjustment of status and a section 212(h) waiver went with it, because he had not meaningfully challenged their denial.

The dissent: Burglary is not robbery

Temporary Appellate Immigration Judge Denise Brown dissented only from the crime-of-violence ruling and would have held him not removable. She first questioned using this case to set precedent on an issue no immigration judge had decided. Then she laid out her objections.

No element of the statute requires the presence of another person. The majority’s robbery cases do not transfer, because every degree of New York robbery has forcible stealing as an element, and burglary has none. A model instruction describing a person who perceives a display does not show force directed at that person, which Borden v. United States, 593 U.S. 420 (2021) (plurality opinion), requires in its reading of “against the person of another”: targeting, and not someone being a “mere recipient.” And nothing in the statute requires the person who perceives the display to be the victim, as opposed to a bystander or a co-defendant, or ties the display to the crime the burglar planned. Intent to commit a crime inside, she wrote, need not be intent to commit a confrontational one.

The dissent did not carry the panel. Its value is practical: It identifies exactly which steps of the majority’s reasoning a court of appeals would have to accept.

What a California case must add

A New York burglary conviction can land in a California immigration court, and the Ninth Circuit decides those petitions on its own view of the law. Three things frame the argument.

The Ninth Circuit already treats threatening weapon display as a crime of violence, but its statute said more. Bolanos v. Holder, 734 F.3d 875, 876–78 (9th Cir. 2013), held that brandishing a firearm at a vehicle occupant under California Penal Code section 417.3 is categorically a crime of violence under § 16(a), and so an aggravated felony that barred cancellation. The elements there spelled out what the Brown dissent says New York leaves out: drawing or exhibiting a firearm “in a threatening manner against another person,” in a way that would cause a reasonable person fear. Bolanos also distinguished its earlier ruling on California Penal Code section 246, which addressed only § 16(b) and involved a statute that could be violated by shooting recklessly near an empty house. The Board itself relied on Gobert, a Ninth Circuit decision on a display of force with a dangerous weapon. In our view, the Bolanos contrast is the opening: The Ninth Circuit’s reasoning leaned on text New York’s statute does not contain, and the government would have to fill the gap with New York case law.

The wording in Bolanos matters when applying the Borden plurality’s reasoning. The Ninth Circuit had excluded reckless force from § 16 even before Bolanos, in Fernandez-Ruiz v. Gonzales, 466 F.3d 1121 (9th Cir. 2006) (en banc). Bolanos then rejected a recklessness argument because section 417.3 requires a threatening display against another person. The Borden plurality, construing nearly identical words in the Armed Career Criminal Act, read “against” to require targeting. As we read the two decisions, California’s express requirement of a threatening display against another person fits the Borden plurality’s targeting rationale. New York’s text is silent, so in our view an argument about its statute should start from Borden, as Judge Brown did.

A threat usually has to be communicated. Neither opinion in Pougatchev cites United States v. Taylor, 596 U.S. 845, 854–55 (2022), which says the word threat usually denotes “[a] communicated intent to inflict physical or other harm.” That language cuts both ways. Taylor also says “pointing a gun at a cashier conveys a threat,” which helps the majority. But it also makes the argument precise. A respondent can say that what New York requires is that someone perceive the object, while what § 16(a) requires is a communicated threat of force, and that the first does not guarantee the second. Taylor also records the government’s concession, about the Hobbs Act, that a threat must be communicated to “a second person, whether or not that individual is the target of the threat,” which bears on the dissent’s bystander point. Expect the government to answer with Baskerville’s language about a victim who “is threatened by a firearm.”

California’s own burglary statute raises a different problem. It failed the generic test in Descamps v. United States, 570 U.S. 254 (2013), because it does not require an unlawful entry. A California burglary conviction needs its own comparison, on both labels.

If your conviction involves showing a weapon

• Check every label DHS has charged, and those it could add. Winning on burglary did nothing here about crime of violence, and the Board decided the second issue on appeal. Brief both before the immigration judge.
• Find the exact subsection. Pougatchev conceded subsection (1)(d). The Board said subsection (2) is not categorically a crime of violence. The difference between them can be the case.
• Read the state’s own definition of each key word. “Building” decided the first half and “display” decided the second, and neither answer was in the words of the statute alone. Look at state appellate decisions and model jury instructions.
• Do not assume a toy or an unloaded gun helps. The statute reached “what appears to be” a firearm, and the Board treated apparent weapons as threats. A footnote adds that the unloaded-gun defense to first-degree burglary is no defense to second-degree burglary.
• Check the sentence. A crime of violence is an aggravated felony only with a term of imprisonment of at least one year. Pougatchev admitted that fact. Before a plea, the sentence is something counsel can address.
• Preserve the dissent’s arguments for a petition for review. Raise the need for a directed threat, the difference from robbery and the bystander problem in the Board, so they are available in the court of appeals.
• Do not let other relief lapse on appeal. The Board treated adjustment and the waiver as waived because the appeal did not meaningfully challenge their denial. Argue each form of relief separately.