Matter of Lanferman (PUB)
A criminal statute is divisible, regardless of its structure, if, based on the elements of the offense, some but not all violations of the statute give rise to grounds for removal or ineligibility for relief.
Here, section 120.14(1) of the New York Penal Law is itself divisible because the “deadly weapon” may or may not be a firearm under 18 U.S.C. § 921(a). The statute contains an element—use of a “deadly weapon”—that could be satisfied by removable conduct—that is, possession or carrying of “any loaded weapon from which a shot . . . may be discharged.” However, it also contains elements that are satisfied by conduct that would not render the respondent removable. For example, the use of a knife or some forms of a “dangerous instrument,” such as a vehicle, to commit a violation would not be a removable offense because the use of a firearm, as defined in 18 U.S.C. § 921(a), is not involved. Moreover, the use of “what appears to be a pistol” to commit a violation would also not be a removable offense under section 237(a)(2)(C), because a plastic water pistol, for example, is not a firearm under 18 U.S.C. § 921(a). Because section 120.14(1) can result in a categorical match or mismatch of elements when compared with section 237(a)(2)(C) of the Act, it is divisible, regardless of the fact that not one of the three subdivisions standing alone is categorically a firearms offense under section 237(a)(2)(C).