2nd Circuit Decisions - Costa v. Holder, __F.3d__, 2010

Costa v. Holder, __F.3d__, 2010 WL 2632186 (2d Cir. July 2, 2010): The Second Circuit upheld an Immigration Judge’s decision (affirmed by the Board) that the offense of sexual assault in the second degree under § 53a-71 of the Connecticut General Statutes was categorically an aggravated felony as a crime of violence under section 101(a)(43)(F) of the Immigration and Nationality Act. The Immigration Judge relied on the Second Circuit’s 2003 decision in Chery v. Ashcroft, 347 F.3d 404 (2d Cir. 2003), which reached the same conclusion. The court dismissed the petitioner’s argument that changes to the applicable Connecticut statute since the time of the court’s decision in Chery rendered the statute divisible and therefore subject to the modified categorical approach.