Full opinion text
MEMORANDUM, ORDER AND JUDGMENT OF DISMISSAL JACK B. WEINSTEIN, Senior United States District Judge: Table of Contents I.Introduction ... 387 II. Factual Background ... 387 A. Early Life ... 387 B. 1993 Robbery Arrest ... 388 C. Robbery Indictment and Guilty Plea ... 388 D. Criminal Sale of a Controlled Substance ... 388 E. Immigration Proceedings ... 388 1. Deportation Hearing ... 388 2. Board of Immigration Appeals ... 392 a. Remand to Immigration Judge ... 392 b. Immigration Judge Decision Affirmed ... 392 c. Relief from Deportation ... 393 3. Deportation ... 394 F. Return to United States ... 394 G. Arrest and Indictment in Instant Case ... 394 III. Defendant’s Motion to Dismiss Indictment ... 395 IV. Law ... 395 A. Illegal Reentry ... 395 B. Collateral Challenge to Prior Deportation Order ... 396 1. Exhaustion of Remedies ... 396 2. Opportunity for Judicial Review ... 396 3. Unfairness of Deportation Order ... 398 V. Application of Law to Facts ... 398 A. Defendant Exhausted Administrative Remedies ... 398 B. Defendant Denied Opportunity for Judicial Review ... 398 C. Deportation Order Fundamentally Unfair ... 400 1. Misapplication of Categorical Approach ... 400 a. Aggravated Felony ... 401 i. General Rule ... 401 ii. Special Problem of Interpretation of State Law by State Court ... 406 b. Firearms Offense ... 406 i. BIA Inference Impermissible ... 407 ii. No Categorical Match in “Firearm” Definition ... 412 2. Denial of Section 212(c) Relief on Comparable Grounds ... 412 3. Prejudice ... 413 VI. Conclusion ... 414 I. Introduction This case joins a distressing group in which an injustice has been committed because a person threatened with deportation has no attorney. Shani Moncrieffe, the defendant, faced deportation proceedings in 1995, after he pled guilty in a New York State court to the crime of robbery in the first degree. Nineteen years old, in shackles, without counsel and without the guidance of anyone, including his mother who was on life support, Mr. Moncrieffe was tried pro se before an immigration judge and the Board of Immigrations Appeal (“BIA”). He was found to be deport-able and ineligible for further relief because they assumed, improperly, that he had been convicted in New York of an aggravated felony and a firearms offense. Deported, he soon returned to the United States. Some twenty years later, after a life free of crime and after becoming a role model for his family and community, Mr. Moncrieffe again faces deportation. He has been charged with the crime of illegal reentry. On December 16, 2015, he filed a motion to dismiss the indictment in the instant case, challenging the validity of the 1995 deportation order. Alleged is that the deportation following his 1993 state conviction was procedurally unfair and obtained in violation of immigration law and due process. If this claim is established — as it is — the 1995 deportation cannot serve as the basis for the current illegal reentry criminal prosecution. Mr. Moncrieffe’s deportation was improper. It was based on a misapplication of the categorical approach in determining whether his state conviction supported removal. Had the categorical approach been properly applied, he would not' have been found to be deportable, the immigration proceedings would have been terminated, he would not have been deported, and he would not have entered the country illegally. See infra Part V.C.1-3. Defendant’s motion to dismiss the indictment is granted. II. Factual Background A. Early Life Shani Moncrieffe is a 40 year old citizen of Jamaica. Decl. of Jan A. Rostal in Support of Def.’s Motion to Dismiss Indictment, Dec. 16, 2015, ECF No. 24 (“Rostal Decl.”), at ¶¶ 4, 17. He first arrived in the United States in 1982, at age seven, when he immigrated with his mother and two siblings. See id., Ex. D, Immigrant Visa and Alien Registration (“Ex.D”), at SM000303. He entered as a lawful permanent resident on an immigrant visa based on the petition of his mother. Id.; see also Gov’t’s Mem. of Law in Opp’n to Def.’s Mot. to Dismiss Indictment, Feb. 2, 2016, ECF No. 29 (“Gov’t Opp’n Mem.”), Ex. 1, Record of Deportable Alien (“Ex.1”), at SM000051. The defendant grew up in small low-rent apartments in Queens, where he lived with his mother, two sisters, his stepfather, stepsiblings, and adopted sister. Rostal Decl., at ¶ 5. His mother worked at night as a nursing home caretaker and took part-time weekend jobs to support the family. Id. As a boy, Mr. Moncrieffe held a variety of jobs, including running a paper route, bagging groceries, and bussing tables at restaurants. Id. Defendant struggled in school and was repeatedly held back. Id. at ¶ 6. He attended, but dropped out of, Springfield Gardens High School, which closed in 2008 due to low test scores and a high drop-out rate. Id. Drugs and gang activity were prevalent problems in his high school and among his neighborhood peers. Id. B. 1993 Robbery Arrest In 1998, at age eighteen, Mr. Moncrieffe was arrested after he and two other boys robbed passengers on a bus. Id. at ¶ 7. He claims that the crime was carried out to help a friend repay a debt to a drug dealer who had threatened violence in case of non-payment. Id. at ¶ 6. C. Robbery Indictment and Guilty Plea On August 26, 1993, defendant was indicted in Queens County, New York, for robbery in the first degree in violation of New York Penal Law sections 160.15(2) and 160.15(4). See Gov’t Opp’n Mem., Ex. 2, People v. Pope, et al., Indictment No. 8852/93 (“Ex.2”), at SM000253-54. Charged was that on or about July 30, 1993, the defendant, together with two other named persons: (1) “forcibly stole ... United States currency ... and in the course of the commission of the crime or of immediate flight therefrom,” the defendant was “armed with a deadly weapon to wit: a handgun”; and (2) forcibly stole money from an individual, and “displayed what appeared to be a handgun.” See id. at SM000254. Shortly after he was charged, and on the advice of appointed counsel, Mr. Mon-crieffe pled guilty to the crime of robbery in the first degree in violation of New York Penal Law section 160.15. See Rostal Decl., at ¶ 7; see also Gov’t Opp’n Mem., Ex. 3, Sentence & Commitment, Oct. 22, 1993 (“Ex.3”), at SM000198. There is no satisfying proof that he pled to any specific subsection of section 160.15. He was sentenced to an indeterminate term of imprisonment of between three and one-third to ten years. See Gov’t Opp’n Mem., Ex. 3, at SM000198. Defendant states that he was not advised of the possibility that he could be deported as a result of his guilty plea. Rostal Deck, at ¶ 7. D. Criminal Sale of a Controlled Substance In June 1993, prior to being sentenced for the robbery, defendant was separately indicted in Kings County for criminal sale of a controlled substance in the third degree in violation of New York Penal Law section 220.39(1). See Gov’t Opp’n Mem., Ex. 6, People v. Bradum, et al., Indictment No. 6170/93 (“Ex.6”), at SM000214-15. Charged was that the defendant, together with two other named persons, knowingly and unlawfully sold cocaine. See id. In March 1994, Mr. Moncrieffe pled guilty to criminal sale of a controlled substance in the third degree in violation of New York Penal Law Section section 220.39(1). See Gov’t Opp’n Mem., Ex. 7, Sentence & Commitment, Mar. 28, 1994 (“Ex.7”), at SM000217. He was sentenced to one to three years imprisonment to run concurrently with his sentence for robbery in the first degree. Id. E. Immigration Proceedings 1. Deportation Hearing On October 19, 1994, the Immigration and Naturalization Service (“INS”) issued an Order to Show Cause based on defendant’s New York robbery conviction. Rostal Decl., Ex. F, Order to Show Cause and Notice of Hearing, Oct. 19, 1994 (“Ex.F”). Charged was that Mr. Moncrieffe was a “deportable alien” pursuant to two grounds: (1) conviction of an aggravated felony of robbery; and (2) conviction of a firearms violation. See § 241 (a)(2) (A) (iii), 8 U.S.C. § 1251 (a) (2) (A) (iii) (1994); § 241(a)(2)(C), 8 U.S.C. § 1251(a)(2)(C) (1994); Rostal Decl., at ¶ 8 and Ex. F. On February 9, 1995, an immigration judge conducted a deportation hearing while Mr. Moncrieffe was serving his state sentence at the Ulster Correctional Facility in Napanoch, New York. Rostal Decl., Ex. A, Oral Decision of the Immigration Judge and Transcript of Proceedings, Feb. 9, 1995 (“Ex.A”). Aged nineteen, Mr. Moncrieffe appeared in shackles and without counsel. Id. The immigration judge informed Mr. Moncrieffe of his right to an attorney, but no effort was made by anyone to provide an attorney for this administrative hearing: [IMMIGRATION JUDGE:] What would you like to do? You’ve got to make a choice this morning. You can either go ahead with your hearing this morning with me and you can represent yourself or you can ask me for a delay in which you can try to find yourself a lawyer. [MR. MONCRIEFFE:] I want to go ahead. Q. You want to go ahead this morning? A. Yes. Q. Do you waive your right to a lawyer? A. I’m going to get a lawyer later on. Q. But you want to go ahead with it now? A. Yeah. Q. What’s going to happen to you if I deport you and there’s no need for a lawyer later on? There won’t be a later on. Have you thought about that? A. I want— Q. You know, you can be deported this morning if you go ahead and represent yourself. Do you understand that? A. Yes. Q. Is that what you want to do? A. Yeah, I want to go on. Q. You want to go ahead with your case? A. Yeah. Q. Without a laivyer. All right, sir, we’ll do that. Id. at 2:5-3:2 (emphasis added). The hearing continued and Mr. Mon-crieffe proceeded, pro se, to answer the questions of the immigration judge. Asked was whether he was a citizen of Jamaica who entered the country at New York City as a legal permanent resident around May 13, 1982; the defendant responded ‘Yes.” Id. at 4:9-13. The immigration judge also asked whether the defendant had been convicted of robbery in the first degree on October 1, 1993 in Queens County, New York; whether he admitted that he was armed with a handgun during the robbery; and whether he was sentenced to a term of three years and four months to ten years of imprisonment. Mr. Moncrieffe responded “Yes” to all three questions: Q. I’m going to ask you some questions that come directly from that Order to Show Cause and I want you to answer each of them as truthfully as you can. The first question is, sir, you are not a native of the U.S., are you? A. No. Q. Are you a native and citizen of Jamaica? A. Yes. Q. Did you come into this country at New York City around May 13th of 1982 as a lawful permanent resident? A. Yes. Q. Then later on October 1st of 1993 were you convicted in the Queens County New York Court for first degree rob- beru that was committed on July 30th of’93? A. Yes. Q. And, sir, do you admit that during the commission of that first degree robbery that you were armed with a handgun? A. Yes. Q. And, finally, do you admit that you were sentenced for that crime for a max — a minimum term of three years and four months to a maximum of ten years? A. Yes. Id. at 4:6-24 (emphasis added). Note that Mr. Moncrieffe agreed that: (1) he had been convicted of robbery in the first degree, but no specific subsection was mentioned; and (2) he had been armed with a “handgun,” but not that he had pled guilty to being so armed. The immigration judge then found that the INS had met its burden of proof as to Mr. Moncrieffe’s deportability by “clear, convincing, and unequivocal evidence.” Id. at 8:5-9. He determined that the defendant was deportable under: (1) section 241(a)(2)(A)(iii) of the Immigration and Nationality Act (“INA”) for having been convicted of an aggravated felony; and (2) section 241(a)(2)(C) of the INA for a firearms violation, having admitted to using a firearm: [Q.] First of all, under Section 241 (a) (2) (A)(iii) of the Immigration Act you’ve been convicted of an aggravated felony which first degree robbery is. Do you understand that? A. Yes. Q. You can be deported for that alone. Also, under Section 241(A)(2)(C) of the Immigration Act, you have admitted to using a handgun so you may be deported for that. That’s a firearms violation under the Immigration Act. Do you understand that? A. Yes. Q. All right. I find that the government has sustained its burden of proof as to deportability in your case by clear, convincing, and unequivocal evidence. Id. at 5:7-20 (emphasis added). Note that the immigration judge told defendant that the “first degree robbery” was “an aggravated felony” which, as explained below, was not clear and needed a defense counsel to explain. Defendant was also told that he had admitted to “using a handgun,” when he had only agreed he had been “armed with a handgun.” See id. at 4:18-20, 5:12-15 (emphasis added). What he had actually pleaded to was not analyzed at all. The immigration judge then went on to assess whether any relief from deportation was available to Mr. Moncrieffe. Id. at 5:21-23. He asked “do you want to try to stay here or do you want to be deported back to Jamaica?” to which defendant answered “I want to go back but I [want to] talk to my mom first.” Id. at 5:25-6:2 (emphasis added). At the time of the hearing, Mr. Moncrieffe’s communications with his mother were limited; she had been involved in a car accident and was still on life support. Rostal Decl., at ¶ 11; see also Hr’g Tr., Feb. 25, 2016, at 42:12-15. The statement “I [want to] talk to my mom first” suggested he had not yet waived the right to contest deportation. The immigration judge told Mr. Mon-crieffe that he “ha[d] to go through with the proceedings as if [Mr. Moncrieffe] wanted to stay here.” Rostal Decl., Ex. A, at 6:3-6 (emphasis added). He asked defendant how old he was, whether he was single or married, and whether his mother who lived in the United States was a United States citizen. Id. at 6:8-22. To this last question, Mr. Moncrieffe replied “I don’t know. I don’t think so.” Id. at 6:23. The government attorney noted that “[a]s of October 5, 1994, the latest we have, she was a lawful permanent resident and not a United States citizen.” Id. at 7:2-4. Q. [¶]... ] I have to go through the proceedings as if you wanted to stay here so in other words I’ve got to go through the rest of this proceeding the same way as if you wanted to fight to stay here, okay. You understand that part of it? A. Yes. Q. [...] First of all, I want to know how old you are? A. Nineteen. Q. Nineteen now? A. Yeah. Q. Okay. Single or married? A. Single. Q. Okay. Mother and father still living? A. Yes. Q. Where do they live? A. My mother live here. My father live in Jamaica. Q. Okay. Is your mother a green card holder? A. Yes. She married too. Q. Okay. But she’s a lawful permanent resident. She’s not a U.S. citizen, right? A. I don’t know. I don’t think so. JUDGE TO MR. MUNJACK Q. What does your file show, Mr. Mun-jack, as to his mother? Anything? A. It shows that she’s a lawful permanent resident, Your Honor. As of October 5, 1994, the latest we have, she was a lawful permanent resident and not a United States citizen. Id. at 6:3-7:4. The immigration judge then concluded that there was no relief available to Mr. Moncrieffe. Id. at 7:14-16. He explained that because he had found that defendant had been convicted of a gun violation, defendant could not stay in the United States: [T]he only reason I’m- asking you these questions is because you have a gun violation — gun charge that you’ve been convicted of. And the Federal Immigration law says that if you have a gun charge violation against you in immigration proceedings that you can’t stay here in this country unless you have a wife and you’re single.... [0]r a mother and a father or a father who are United States citizens could file a petition for you which would waive that gun charge. You don’t have that. So I find that there is no relief available for you and I could not let you stay in this country even if I wanted to. Id. at 7:6-16 (emphasis added). An attorney would not have accepted so cavalier a description of defendant’s legal position. The judge told defendant that he could get no relief from the forthcoming order of deportation: I find that the government sustains the burden of proof by clear, convincing, and unequivocal evidence as to deportability. I find also that there is no relief in your case. You’re not qualified for adjustment of status in this case and so I’m going to order you deported to Jamaica. Id. at 8:5-9 (emphasis added). Finally, the immigration judge inquired if Mr. Moncrieffe wished to appeal his decision. See id. at 9:5. Again, Mr. Mon-crieffe indicated that he wished to consult his mother before making a decision: “Um — well, talk to my mother and see what she going to say. I might appeal.” Id. at 9:6-7 (emphasis added). Defendant subsequently confirmed that he did wish to appeal, and the immigration judge explained the purpose of an appeal: “[WJhat you appeal for is to tell them that the judge made an error and you tell them what it was and you then try to hope that they will overturn my decision and give you a new hearing or whatever.” Id. at 10:5-8 (emphasis added). Defendant was reminded of the deadline for the timely filing of an appeal. Id. at 10:18-20. He still had no attorney. He was given no clue as to how he might get an attorney or what was a possible error of the administrative judge. 2. Board of Immigration Appeals The notice of appeal filed by Mr. Mon-crieffe is missing from the record. So the nature of the appeal and the issues raised by defendant cannot now be determined. The parties agree that the opinions of the BIA indicate that the appeal was timely filed by defendant pro se. See Rostal Decl., at ¶ 14; Gov’t Opp’n Mem., at 8, n.3. a. Remand to Immigration Judge On June 9, 1995, the BIA determined that the “record of the proceedings in this case does not reveal a certified copy of the conviction record.” Rostal Decl., Ex. B, BIA Decision of Jun. 9, 1995, at SM000062. It remanded to the office of the immigration judge “for inclusion of the record of conviction:” PER CURIAM. This matter comes before us by way of the respondent’s appeal of the Immigration Judge’s decision dated February 9, 1995, finding the respondent deportable as charged, and statutorily ineligible for any form of relief from deportation. The respondent was convicted in the New York State Supreme [Court] on October 1, 1993, for the offense of first degree robbery, in violation of section 160.15 of the New York State Penal Law. It is alleged that the respondent was armed with a handgun in the course of committing the offense, for which he was sentenced to an indeterminate span of three to ten years incarceration. Our review of the record of proceedings in this case does not reveal a certified copy of the conviction record. Therefore, we cannot determine the respondent’s eligibility for relief from deportation. The record is hereby remanded to the office of the Immigration Judge for inclusion of the record of conviction. Id. (emphasis added). There was, and still is, no certified copy of the plea, so we do not know whether the defendant pled to a specific subsection, and, as indicated below, in the instant criminal case it must be assumed that he did not plead to.a specific subsection of section 160.15 because there is no evidence that he did so. b. Immigration Judge Decision Affirmed The second BIA opinion, dated October 24, 1995, indicates that “the documentation has now been provided and the record has been returned to us for adjudication of the respondent’s appeal.” Id., Ex. B, BIA Decision of Oct. 24, 1995, at SM000058. Here, the BIA affirmed the immigration judge’s decision. Id. First, it found that Mr. Moncrieffe’s robbery conviction was for an “aggravated felony,” making him deportable under former INA section 241 (a) (2) (A)(iii): Inasmuch as the respondent’s first-degree robbery conviction was for a “crime of violence” for which the term of imprisonment imposed was at least 5 years, and given that both his criminal conduct occurred and his conviction was entered in 1993, we find that he has been convicted of an “aggravated felony ” for purposes of section 101(a)(43(F) of the Act. Id. at SM000059 (emphasis added). Second, with respect to whether the defendant was also deportable as a non-citizen convicted of a firearms violation, the BIA noted that “[t]he judgment of conviction included in the record indicates only that the respondent was convicted of robbery in the first degree.” Id. (emphasis added). The BIA recognized that only subsections (2) and (4) of section 160.15 “relate[d] in any way to the use, possession, or the carrying of a firearm.” Id. at SM000060. Because section 241(a)(2)(C) of the INA “is predicated in pertinent part upon a conviction for using, owning, possession, or carrying a firearm in violation of any law,” the BIA noted that in order to be deportable the defendant “would have had to have been convicted under either subsection 2 or 4 of section 160.15 of the New York Penal Law.” Id. (emphasis added). The BIA explained: It is apparent that only subsections 2 and 4 of section 160.15 relate in any way to the use, possession, or the carrying of a firearm. Hence, in order to be deport-able under section 24.1(a)(2)(C) of the Act, which subsection is predicated in pertinent part upon a conviction for using, owning, possession, or carrying a firearm in violation of any law, the respondent would have had to have been convicted under either subsection 2 or 4 of section 160.15 of the New York Penal Law. . As noted above, the judgment of conviction does not specify the subsection of section 160.15 or the specific count under which the respondent was convicted. Id. (emphasis added). Although the BIA acknowledged that the judgment of conviction did not specify under which subsection Mr. Moncrieffe was convicted, it assumed that the conviction was under subsection (2) or (4) of New York Penal Law section 160.15: [T]he criminal indictment supporting the conviction establishes that the respondent was charged with a total of two counts of robbery in the first degree, one under subsection 2 and the other under subsection 4. Hence it can be inferred that the respondent’s conviction for robbery in the first degree was premised on one of these two subsections. Furthermore we note that count one of the indictment states that “the defendants [including therefore the respondent] were armed with a deadly weapon to wit: a handgun.” Additionally, we observe that at his deportation hearing, the respondent himself admitted that during the commission of the robbery he was armed with a handgun .... Based on this evidence, we find that the respondent’s conviction for robbery in the first degree is correctly viewed as also being a conviction for a firearms violation for purposes of the immigration law. Id. (emphasis added). Based on its assumptions, unsupported by the record, the BIA concluded that Mr. Moncrieffe was convicted of a firearms offense' and deport-able under former section 241(a)(2)(C) of the INA. Id. c. Relief from Deportation The BIA then turned to whether the defendant qualified for any relief from deportation, “given that he has been a lawful permanent resident of the United States for over 13 years.” Id. According to the BIA, “relief is available in deportation proceedings only to those aliens who have been found deportable under a ground of deportability for which there is a comparable ground of excludability.” Id. at SM000061 (emphasis added). It then concluded: Inasmuch as the respondent is deporta-ble under section 241(a)(2)(C) of the Act, a section having no counterpart among the enumerated grounds of exclusion, he is ineligible as a matter of law for relief under section 212(c) of the Act, notwithstanding the fact that he has resided in this country for the past 13 years as a lawful permanent resident. Id. (emphasis added). The BIA noted that the defendant “might be able to establish his eligibility for adjustment of status based on his relationship to his lawful permanent resident mother.” Id. (emphasis added). Yet, “[tjhere is no indication from the record ... that the respondent’s mother has actually petitioned his admission by filing a visa petition on his behalf.” Id. (emphasis added). It explained: It is conceivable that the respondent might be able to establish his eligibility for adjustment of status based on his relationship to his lawful permanent resident mother. There is no indication from the record, however, that the respondent’s mother has actually petitioned his admission by filing a visa petition in his behalf. Even assuming that such a petition had been filed and approved, the respondent cannot establish, as he must for adjustment purposes, that an immigrant visa is immediately available to him. Therefore he cannot demonstrate, even preliminarily, his eligibility for adjustment of status. Id. (emphasis added). It will be recalled that the mother at the moment was seriously debilitated from an auto accident and that defendant had no attorney. See supra Part II.E.1. How could he possibly make the required record without counsel? The BIA also determined that, based on his “aggravated felony conviction,” Mr. Moncrieffe was “ineligible for suspension of deportation because he [was] precluded as a matter of law from establishing his good moral character....” Rostal Decl., Ex. B, BIA Decision of Oct. 24, 1995, at SM000061. The BIA concluded: Since the respondent is deportable as charged and there appears to be no relief from deportation for which he might qualify notwithstanding the favorable factors now enunciated, we have no choice but to dismiss the appeal. Accordingly, the appeal is dismissed. Id. (emphasis added). In short, defendant’s “favorable factors” were never considered. 3. Deportation Mr. Moncrieffe served his term for his 1993 conviction. See Rostal Decl., at ¶ 16. He was paroled to immigration custody on July 28, 1999. Id. He was deported to Jamaica on August 18, 1999. Rostal Decl., Ex. E, Case Closure Look Screen, Feb. 20, 2002 (“Ex.E”). No direct appeal or habe-as relief was sought by defendant between the time of the BIA’s ruling and his deportation. He still had no attorney. F. Return to United States Subsequent to his deportation, Mr. Mon-crieffe returned to the United States and lived with his family up until the time of his arrest and the criminal indictment in the instant ease. Rostal Decl., at ¶ 17. Since his return, Mr. Moncrieffe has not been found guilty of any other criminal offense. See id.; see also Hr’g Tr., Feb. 25, 2016 (indicating the presence of persons supportive of defendant at the hearing before this court on the instant motion). Defendant’s family, friends, clients, and fellow church members attest to his full rehabilitation. Rostal Decl., Ex. C, S. Moncrieffe Character References (“Ex. C”). He has obtained a General Educational Development diploma (“GED”) and followed a career in landscaping, construction and carpentry, successfully opening his own business. Rostal Decl., at ¶ 17. He is a member of the St. Albans Congregational Church in Queens, where he sings in two choirs and participates in the church’s ministries. Id. He has been characterized as a “role model” for community youth. Rostal Decl., Ex. C. G. Arrest and Indictment in Instant Case About April 13, 2015, Mr. Moncrieffe was arrested by the New York City Police Department (“NYPD”) for unlicensed operation of a motor vehicle, in violation of New York Vehicle and Traffic Law section 509. See Compl., July 17, 2015, ECF No. 1 (“Compl.”), at ¶ 2. United States Immigration and Customs Enforcement (“ICE”) was notified of the arrest. Id. at ¶ 3. That arrest is not the basis for the current federal criminal charge. On July 29, 2015 Mr. Moncrieffe was indicted for an illegal reentry. See Indictment, July 29, 2015, ECF No. 5. Charged was that Mr. Moncrieffe, a non-citizen “who had previously been deported from the United States after a conviction for the commission of an aggravated felony, was found in the United States, without the Secretary of the United States Department of Homeland Security having expressly consented to such alien’s applying for admission.” See 8 U.S.C. §§ 1326(a), 1326(b)(2) and 18 U.S.C. § 3551 et seq; Indictment, July 29, 2015, ECF No. 5. Implied in the indictment is that he had been “properly deported.” III. Defendant’s Motion to Dismiss Indictment Defendant filed a motion to dismiss the indictment on December 16, 2015. See Def.’s Mot. to Dismiss Indictment, Dec. 16, 2015, ECF No. 24 (“Def.’s Mot. to Dismiss”). Contended is that the deportation following his 1993 robbery conviction was proeedurally unfair and obtained in violation of immigration law and due process; thus, it could not serve as the basis for an illegal reentry prosecution under section 1326(d) of Title 8 of the United States Code. See id. According to Mr. Mon-crieffe, he is entitled to challenge the validity of the deportation order on which his illegal reentry charges are based because he satisfies the elements of section 1326(d) in that: (1) he exhausted “any administrative remedies that may have been available to seek relief against the order”; (2) his deportation proceedings “improperly deprived [him] of the opportunity for judicial review”; and (3) “entry of the order was fundamentally unfair.” See id. at 2; see also 8 U.S.C. § 1326(d). The government opposes the motion, arguing that Mr. Moncrieffe has failed to satisfy the second and third prongs of section 1326(d) because: (1) judicial review was available to him in the form of an appeal to the Court of Appeals for the Second Circuit or a habeas challenge, but he failed to pursue either avenue; and (2) the proceedings were not fundamentally unfair because the BIA “reviewed his appeal consistent with the law at the time and new legal principles cannot be applied to already closed cases.... ” Gov’t Opp’n Mem., at 2. IV. Law A. Illegal Reentry Section 1326(a) of Title 8 of the United States Code makes it a crime for a deported non-citizen to enter, attempt to enter, or be found in the United States without the express consent of the Attorney General: (a) In general Subject to subsection (b) of this section, any alien who— (1) has been denied admission, excluded, deported, or removed or has departed the United States while an order of exclusion, deportation, or removal is outstanding, and thereafter (2) enters, attempts to enter, or is at any time found in, the United States, unless (A) prior to his reembarkation at a place outside the United States or his application for admission from foreign contiguous territory, the Attorney General has expressly consented to such alien’s reapplying for admission; or (B) with respect to an alien previously denied admission and removed, unless such alien shall establish that he was not required to obtain such advance consent under this chapter or any prior Act, shall be fined under Title 18, or imprisoned not more than 2 years, or both. 8 U.S.C. § 1326(a). Because a prior valid deportation order is an element of an illegal reentry offense, a defendant charged under section 1326(a) may collaterally attack the validity of the prior deportation order and proceedings. United States v. Mendoza-Lopez, 481 U.S. 828, 836-39, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987); see also United States v. Gonzalez-Roque, 301 F.3d 39, 45 (2d Cir.2002); United States v. Calderon, No. 02-CR-0691, 2003 WL 1338943, at *4 (E.D.N.Y. Jan. 9, 2003) aff'd, 391 F.3d 370 (2d Cir.2004); United States v. Gill, 748 F.3d 491, 493, 497 (2014). Deportation proceedings are not valid and cannot be used to establish prior deportation for purposes of an illegal reentry criminal prosecution if they failed to comply with the requirements of due process. See, e.g., Mendoza-Lopez, 481 U.S. at 837-41, 107 S.Ct. 2148; United States v. Fernandez-Antonia, 278 F.3d 150, 156 (2d Cir.2002); Calderon, 2003 WL 1338943 at *4. B. Collateral Challenge to Prior Deportation Order A non-citizen charged with illegal reentry in violation of section 1326 may challenge nunc pro tunc the underlying order of removal or deportation on limited grounds, as provided for under section 1326(d): In. a criminal proceeding under this section, an alien may not challenge the validity of the deportation order described in subsection (a)(1) of this section or subsection (b) of this section unless the alien demonstrates that— (1)the alien exhausted any administrative, remedies that may have been available to seek relief against the order; (2) the deportation proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial review; and (3) the entry of the order was fundamentally unfair. 8 U.S.C. § 1326(d). A defendant must establish all three prongs in section 1326(d). See Fernandez-Antonia, 278 F.3d at 157. 1. Exhaustion of Remedies Exhaustion of administrative remedies generally — but not always — requires a non-citizen to appeal the order of an immigration judge to the BIA. See Calderon, 2003 WL 1338943 at *4; see also U.S. v. Lopez, 445 F.3d 90, 93 (2d Cir.2006). 2. Opportunity for Judicial Review In Mendoza-Lopez, subsequently codified in section 1326 of Title 8, the Supreme Court held that “where a determination made in an administrative proceeding is to play a critical role in the subsequent imposition of a criminal sanction, there must be some meaningful review of the administrative proceeding.” Mendoza-Lopez, 481 U.S. at 837-38, 107 S.Ct. 2148 (emphasis in original). Due process is violated when a non-citizen is “effectively deprived” of the right to a direct appeal; an unconsidered and unintelligent waiver of appeal rights is treated as a deprivation of those rights. See id. at 840, 107 S.Ct. 2148 (finding that because “the waivers of their rights to appeal were not considered or intelligent, respondents were deprived of judicial review of their deportation proceeding”); see also United States v. Perez, 213 F.Supp.2d 229, 232 (E.D.N.Y.2002) aff'd, 330 F.3d 97 (2d Cir.2003) (citing United States v. Paredes-Batista, 140 F.3d 367, 376 (2d Cir.1998)). Waivers are not “considered” or “intelligent” if the immigration judge and counsel fail to inform the non-citizen of his right to discretionary relief. See Mendoza-Lopez, 481 U.S. at 840, 107 S.Ct. 2148 (waiver was not considered and intelligent when immigration judge “failed to advise respondents properly of their eligibility to apply for suspension of deportation”); United States v. Calderon, 391 F.3d 370 (2d Cir.2004) (finding that defendant was deprived of a realistic opportunity for judicial review where he “was specifically told that no such review was available to him”); United States v. Sosa, 387 F.3d 131, 138 (2d Cir.2004) (“Given the speed of this process and the fact that the [immigration judge] did not inform Sosa of his eligibility for Section 212(c) relief, we hold that he had no ‘realistic opportunity for judicial review by way of habeas.’ ”) (internal citation omitted); see also United States v. Arrieta, 224 F.3d 1076, 1079 (9th Cir.2000) (“an alien who is not made aware that he has a right to seek relief necessarily has no meaningful opportunity to appeal the fact that he was not advised of that right.”). In Perez, the court identified instances in which a deprivation of due process had been found. These included failure to advise meaningfully of the right to appeal, failure to explain the possibility of discretionary relief, inadequate explanation of other methods of avoiding deportation, and ineffective counsel: Situations in which courts have found a deprivation of the opportunity for review include an unconsidered and unintelligent waiver of appeal, Mendoza-Lopez, 481 U.S. at 840, 107 S.Ct. 2148, 95 L.Ed.2d 772; failure to advise of the availability of discretionary relief, United States v. Arrieta, 224 F.3d 1076, 1079 (9th Cir.2000); United States v. Aguirre-Tello, 181 F.Supp.2d 1298, 1303-1304 (D.N.M.2002); inadequate explanation of a section 212(c) hearing and such a hearing’s accompanying rights, United States v. Sanchez-Peralta, 1998 WL 63405, at *5 (S.D.N.Y.Feb.13, 1998); and failure to inform the alien of the time and date of a hearing, United States v. Montano-Bentancourt, 151 F.Supp.2d 794, 796-97 (W.D.Tex.2001)-Deprivation of judicial review can also be established by demonstrating ineffective assistance of counsel. Perez, 213 F.Supp.2d at 232-33. Under circumstances such as the present one, lack of counsel may be considered even more important evidence of an improper deportation process than ineffective counsel. The availability of habeas review sometimes amounts to an opportunity for judicial review. United States v. Copeland, 376 F.3d 61, 68 (2d Cir.2004). In Copeland, the Court of Appeals for the Second Circuit held that “where habeas review is technically available, judicial review will be deemed to have been denied if resort to a habeas proceeding was not realistically possible.” Id. (emphasis added). The court concluded that “where no realistic opportunity for judicial review by way of habeas review existed, an alien’s failure to seek such review will not be deemed to preclude a collateral attack on a deportation order under Section 1326(d)(2).” Id. at 68-69; see also Calderon, 391 F.3d at 374-75. A lack of a realistic opportunity for judicial review has been found in instances where: a non-citizen’s waiver of the right of appeal was not deemed to be knowing and intelligent, see, e.g., Copeland, 376 F.3d at 68-69 (citing Mendoza-Lopez, 481 U.S. at 836-37, 840, 107 S.Ct. 2148); a non-citizen was affirmatively misled by the government as to the availability of relief, see, e.g., Lopez, 445 F.3d at 98-99; and the immigration judge did not adequately inform the non-citizen of his eligibility for relief under section 212(c), see, e.g., Sosa, 387 F.3d at 138; Calderon, 391 F.3d at 375-76. Given this broad and deep due process protection, telling an uncounseled young man with limited education, who wants to obtain his mother’s advice before deciding whether to appeal (when she is in fact unavailable) may in context be the equivalent of no notice of the right to appeal. Although “there is a strong policy in favor of finality, that policy does not override an individual’s right to due process in a proceeding whose outcome is being asserted as an element of a criminal offense.” Calderon, 2003 WL 1338943 at *6. 3. Unfairness of Deportation Order To demonstrate that a deportation order was fundamentally unfair, a defendant “must show both a fundamental procedural error and prejudice resulting from that error.” See United States v. Perez, 330 F.3d 97, 104 (2d Cir.2003) (citing Fernandez-Antonia, 278 F.3d at 159). “Prejudice is shown where there is a reasonable probability that, but for the error, the result of the proceeding would have been different.” United States v. Daley, 702 F.3d 96, 100 (2d Cir.2012) (alterations and citations omitted); see also Copeland, 376 F.3d at 70 (“[I]n order to demonstrate prejudice an alien must show that this proceedings contained errors so fundamental that he might have been deported in error.”) (internal citation and quotation omitted). V. Application of Law to Facts A. Defendant Exhausted Administrative Remedies Mr. Moncrieffe contends that he satisfied the administrative exhaustion requirement of section 1326(d) in two ways: (1) through his BIA appeal; and (2) by his being affirmatively misled as to deportability and the availability of relief from deportation. The government has not objected to this view. Mr. Moncrieffe timely appealed his deportation order to the BIA. This alone satisfies the exhaustion requirement of section 1326(d)(1). He was repeatedly mistakenly told by the immigration judge and the BIA that further relief, including section 212(c) relief, was not available to him. Thus, his subsequent failure to seek section 212(c) relief does not bar collateral review of the deportation proceedings. See Calderon, 391 F.3d at 375 (excusing defendant from the exhaustion requirement where he did not seek section 212(c) relief “because he was advised that he was barred by law from such relief’). B. Defendant Denied Opportunity for Judicial Review Mr. Moncrieffe asserts that he was wrongly told by the immigration judge and the BIA that his 1993 robbery conviction rendered him deportable with no possibility of relief. He argues that, as a pro se litigant, his failure to seek judicial review of the BIA’s ruling was not a knowing and intelligent waiver of his right to court review. See Def.’s Mot. to Dismiss, at 11. The government counters that both the immigration judge and the BIA preserved defendant’s ability to seek judicial relief and that Mr. Moncrieffe: (1) failed to file a petition to review to the Court of Appeals for the Second Circuit following the BIA’s order confirming his deportation; and (2) did not file a habeas petition in the four years between the BIA’s decision and his deportation. See Gov’t Opp’n Mem., at 14-15. The Court of Appeals for the Second Circuit has recognized that where “no realistic opportunity ” for judicial review exists, a non-citizen’s failure to seek such review will not bar a section 1326(d) collateral challenge to the underlying deportation. See, e.g., Calderon, 391 F.3d at 375 (emphasis added); Copeland, 376 F.3d at 68-69. No such opportunity exists where an uncounseled non-citizen is affirmatively told by the immigration authorities that no relief is available to him. See, e.g., Mendoza-Lopez, 481 U.S. at 836-37, 840, 107 S.Ct. 2148 (determining that “respondents were deprived of their rights to appeal, and of any basis to appeal since the only relief for which they would have been eligible was not adequately explained to them”); Calderon, 391 F.3d at 375-76 (finding no realistic opportunity for judicial review where the defendant was specifically told that section 212(c) relief was unavailable to him as a matter of law and the speed of the deportation process rendered judicial review impracticable); Sosa, 387 F.3d at 138 (holding that defendant had no realistic opportunity for judicial review due to “the speed of th[e] process and the fact that the [immigration judge] did not inform [him] of his eligibility for Section 212(c) relief’); Lopez, 445 F.3d at 100 (“[T]he [immigration judge’s] and BIA’s ... affirmative misstatements to [the non-citizen] that he was not eligible for any relief from deportation functioned as a deterrent to seeking relief.”) (emphasis added). Here, Mr. Moncrieffe — a young nineteen year old with limited education— appeared pro se before the immigration judge and then the BIA. At the immigration proceedings, he indicated his intention to obtain a lawyer “later on,” as well as his desire to discuss the matter with his mother, who was on life support at the time, before making any critical decision that might affect his ability to remain in the United States. See Rostal Decl., Ex. A, at 2:13, 9:6-7. Alone and uncounseled, he was told by the immigration judge that, because he had “a gun charge violation, ... no relief is available for you and I could not let you stay in this country even if I wanted to.” Id. at 7:11-16. The immigration judge had erroneously based his decision on a determination, without supporting evidence, that Mr. Moncrieffe had pled guilty to “a gun charge violation.” See infra Part V.C.1. The BIA then mistakenly reiterated that, because he was convicted of a “firearms offense,” Mr. Moncrieffe was ineligible for section 212(c) reliéf “as a matter of law.” Rostal Decl., Ex. B, BIA Decision of Oct. 24, 1995, at SM000061; see also infra Part V.C.1. Like the defendant in Lopez, Mr. Mon-erieffe “received erroneous information from the [immigration judge] and the BIA about the availability of relief from deportation.” Lopez, 445 F.3d at 98. Recognized by the court in that case is that, [h]ad the [immigration judge] (and subsequently the BIA) not provided erroneous information ... about the legal availability of § 212(c) relief, it might have occurred to [defendant] to look for other remedies at law. The fact that an administrative body told him that no such relief existed is a powerful deterrent from seeking judicial relief. Id. (emphasis added). As in Lopez, the interval of time between Mr. Moncrieffe’s deportation order and his actual deportation is not relevant here. Id. at 99 (“While the interval of time in which it is realistically possible for an alien to seek judicial review may be quite short where the alien has not received misinformation, the analysis differs where the government affirmatively misleads an alien about the availability of relief.”). Mr. Moncrieffe was erroneously told by the immigration judge and the BIA that no relief was available to him as a matter of law. “Waivers [of the right to judicial review] are not fully informed if the immigration judge ... fail[s] to inform the alien of his right to discretionary relief.” Calderon, 2003 WL 1338943 at *5. The Court of Appeals for the Second Circuit has firmly ruled, [gjiven that [immigration judges] have a duty to develop the administrative record, and that many aliens aré uncoun-seled, our removal system relies on [immigration judges] to explain the law accurately to pro se aliens. Otherwise, such aliens would have no way of knowing what information was relevant to their cases and would he practically foreclosed from making a case against removal. Copeland, 376 F.3d at 61, 71 (emphasis added). Mr. Moncrieffe was an uncounseled immigrant, and a youthful, poorly educated, nineteen year old as well. In light of the repeated statements by immigration authorities that no further relief was available to him, his failure to seek judicial review following his BIA appeal is not a bar to a collateral attack on his deportation. C. Deportation Order Fundamentally Unfair Defendant argues that the deportation order was fundamentally unfair because: (1) both the immigration judge and the BIA misapplied the categorical approach to determine whether the record supported the two separate charges of re-movability; and (2) the BIA denied Mr. Moncrieffe relief under section 212(c) based on the “comparable ground rule” which has been struck down by the Supreme Court as “arbitrary and capricious.” See Def.’s Mot. to Dismiss, at 12 (citing Judulang v. Holder, — U.S. -, 132 S.Ct. 476, 181 L.Ed.2d 449 (2011)). 1. Misapplication of Categorical Approach According to defendant, the immigration judge and BIA misapplied the appropriate categorical approach in determining that he was deportable as charged. The Supreme Court has explained: “[w]hen the Government alleges that a state conviction qualifies as an ‘aggravated felony5 under the INA, we generally employ a ‘categorical approach’ to determine whether the state offense is comparable to an offense listed in the INA.” Moncrieffe v. Holder, - U.S. -, 133 S.Ct. 1678, 1684, 185 L.Ed.2d 727 (2013) (citations omitted). The categorical approach had been adopted by the Supreme Court and was being utilized by the BIA for several years prior to Mr. Monerieffe’s case. See Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990); Moncrieffe, 133 S.Ct. at 1685 (stating that “[t]his categorical approach has a long pedigree in our Nation’s immigration law” and citing Das, The Immigration Penalties of Criminal Convictions: Resurrecting Categorical Analysis in Immigration Law, 86 N.Y.U. L.Rev. 1669, 1688-1702, 1749-1752 (2011) (tracing judicial decisions back to 1913)). It is not disputed that the categorical approach is applicable in the instant case. See Hr’g Tr., Feb. 25, 2016, at 11:20-22. Central to the categorical approach is the rule that the crime of conviction is defined by the applicable statute; the underlying actual conduct of the defendant is immaterial. “[T]he INA asks what offense the noncitizen was convicted of not what acts he committed. [C]onviction is the relevant statutory hook.” Moncrieffe, 133 S.Ct. at 1685 (internal citations and quotation marks omitted) (emphasis added). Analysis under the categorical approach requires determining whether “the state statute defining the crime of conviction categorically fits within the generic federal definition of a corresponding aggravated felony.” Id. at 1684 (citing Gonzales v. Duenas-Alvarez, 549 U.S. 183, 186, 127 S.Ct. 815, 166 L,Ed.2d 683 (2007)) (internal quotation marks omitted). The analysis does not center on “the facts of the particular prior case.” Id. Instead, “a state offense is a categorical match with a generic federal offense only if a conviction of the state offense necessarily involved ... facts equating to [the] generic [federal offense]. Whether the noncitizen’s actual conduct involved such facts is quite irrelevant.” Id. (internal quotation marks and citations omitted) (emphasis added). The Supreme Court explained that the categorical approach requires a minimum conduct analysis: “[b]ecause 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.” Id. (citing Johnson v. United States, 559 U.S. 133, 137, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010)) (emphasis added). Also irrelevant is what the defendant-deportee said he had done, or what an immigration judge inferred was done. A hypothetical case clarifies the rule: Assume a federal statute provides that a state conviction can be used as if it were a prior conviction in federal sentencing if it has the same or more severe operative elements than the federal statute. The state statute, “A,” requires stealing over $10.00. The federal statute, “B,” requires stealing over $20.00. The defendant is charged as follows in the state under its statute, “A”: “Defendant stole $100, to wit a $100 gold United States government issued coin.” And the defendant pled: “I plead guilty to violation of statute A. I stole this $100 gold coin, marked exhibit 1.” That is not a prior congruent categorical crime under federal statute “B,” because the defendant pled only to stealing $10.00, while the federal statute required $20.00 or more. Mr. Moncrieffe properly contends that because the record from his 1993 conviction of violating section 160.15 fails to specify what subsection of that section he was convicted of, and some subsections did not define a deportable offense, it was insufficient as a matter of law to establish that his conviction amounted to (1) a “crime of violence” and thus an “aggravated felony” under former INA section 241 (a)(2)(A)(iii); and (2) a “firearms” offense subjecting him to removability under former INA section 241(a)(2)(C). a. Aggravated Felony Under then-applicable INA section 241(a)(2)(A)(iii), an aggravated felony triggering removal proceedings could be found if the offense amounted to a “crime of violence.” See INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F) (1994) (cross-referencing 18 U.S.C. § 16). A crime of violence was, and still is, defined by section 16 of Title 18 of the United States Code, <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, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. 18 U.S.C. § 16. The parties stipulated on the record that, because the immigration authorities only relied on subsection 16(a) in their analysis, subsection 16(b) is not relevant to the present motion. It will not be considered here. See Hr’g Tr., Feb. 25, 2016, at 9:14-10:4. i. General Rule Under the applicable categorical approach, the immigration judge and BIA need to compare the state elements of the offense of defendant’s conviction with the elements of the federal “crime of violence” under section 16. Because the immigration judge and BIA did not rely on the elements of the actual offense of which Mr. Moncrieffe was convicted in determining that he was convicted of “a crime of violence,” it is accurately contended by the defendant that the conclusion reached by the immigration authorities was erroneous. Mr. Moncrieffe was convicted of robbery in the first degree under New York Penal Law section 160.15, which provides various methods by which the crime could be committed as follows: A person is guilty of robbery in the first degree when he forcibly steals property and when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime: 1. Causes serious physical injury to any person who is not a participant in the crime; or 2. Is armed with a deadly weapon; or 3. Uses or threatens the immediate use of a dangerous instrument; or 4. Displays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm; except that in any prosecution under this subdivision, it is an 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. Nothing contained in this subdivision shall constitute a defense to a prosecution for, or preclude a conviction of, robbery in the second degree, robbery in the third degree or any other crime. N.Y. Penal Law § 160.15 (emphasis added). Neither the immigration judge nor the BIA addressed the specific elements of Mr. Moncrieffe’s conviction. While the BIA recognized that “the judgment of conviction does not specify the subsection of section 160.15 or the specific count under which the respondent was convicted,” it nonetheless determined that: Inasmuch as the respondent’s first-degree robbery conviction was for a “crime of violence” for which the term of imprisonment imposed was at least 5 years, and given that both his criminal conduct occurred and his conviction was entered in 1993, we find that he has been convicted of an “aggravated felony” for purposes of section 101(a)(43)(F) of the Act. Rostal Decl., Ex. B, BIA Decision of Oct. 24, 1995, at SM000059-60 (emphasis added). This eonclusory and unsupported statement does not comport with the strict requirements of a categorical analysis. The categorical approach requires a narrow and precise comparison of the actual statute of conviction to the federal definition of a corresponding aggravated felony. Prohibited is any reliance on the names or captions of the predicate state offense, as well as on the underlying facts of conviction. Because neither the immigration judge nor the BIA carried out the appropriate analysis required under the categorical approach, the finding that Mr. Moncrieffe’s conviction amounted to a deportable “aggravated felony” was improper. The government counters that “any robbery, no matter the nature of it, is a violent felony.” Hr’g Tr., Feb. 25, 2016, at 21:21-24. According to the government, “forcibly stealing” is an essential element of any conviction under section 160.15 and this element on its own satisfies the “crime of violence” definition in federal section 16(a). See Gov’t. Opp’n Mem., at 17-18. Under the categorical approach, a court is to assume that a “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.” Moncrieffe, 133 S.Ct. at 1681 (citing Johnson v. United States, 559 U.S. 133, 137, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010)) (emphasis added). “Forcibly stealing” is a common element of all New York robbery offenses. New York Penal Law section 160.00 provides that: A person forcibly steals property and commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: 1. Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or 2. Compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny. N.Y. Penal Law § 160.00 (emphasis added). New York courts have explained that the “physical force” threatened or employed can be minimal, including a bump, a brief tug-of-war over property, or even the minimal threatened force exerted in “blocking” someone from pursuit by simply standing in their way. See, e.g., People v. Lee, 197 A.D.2d 378, 602 N.Y.S.2d 138, 139 (1st Dep’t 1993) (bumping victim); People v. Bennett, 219 A.D.2d 570, 631 N.Y.S.2d 834, 834 (1st Dep’t 1995) (“human wall” blocking pursuit); People v. Patton, 184 A.D.2d 483, 585 N.Y.S.2d 431, 431 (1st Dep’t 1992) (blocking pursuit); People v. Safon, 166 A.D.2d 892, 560 N.Y.S.2d 552, 552 (4th Dep’t 1990) (tug-of-war); People v. Brown, 243 A.D.2d 363, 663 N.Y.S.2d 539, 540 (1st Dep’t 1997) (attempting to push the victim); People v. Pena, 50 N.Y.2d 400, 407 n. 2, 429 N.Y.S.2d 410, 406 N.E.2d 1347 (N.Y.1980) (defendant who commits robbery while carrying a deadly weapon is guilty of robbery in the first degree; mere possession is sufficient for a conviction); cf. United States v. Castleman, — U.S. -, 134 S.Ct. 1405, 1412, 188 L.Ed.2d 426 (2014) (“Minor uses of force may not constitute ‘violence’ in the generic sense. For example, in an opinion that we cited with approval in Johnson, the Seventh Circuit noted that it was hard to describe ... as violence a squeeze of the arm [that] causes a bruise.”) (internal quotation marks and citation omitted). This is not disputed by the government: THE COURT: But any amount of force is okay under the New York statute, isn’t it? MS. WASHINGTON: Yes. THE COURT: You jostle somebody to make that person drop a purse, for example, is that force? MS. WASHINGTON: For purposes of New York law, sure, yes. Hr’g Tr., Feb. 25, 2016, at 20:24-21:5. The government argues that because the language of New York Penal Law section 160.00 regarding the use or threat of physical force mirrors the language in section 16(a) of Title 18 of the United States Code, this is sufficient to determine that any crime of robbery under New York law qualifies as a “violent felony,” for immigration purposes, regardless of the amount of force used. See Hr’g Tr., Feb. 25, 2016, at 24:11-14, 25:7-25, 51:2-6. In support of its argument, the government cites to United States v. Snype, 441 F.3d 119 (2d Cir.2006). In Snype, the Court of Appeals for the Second Circuit considered a defendant’s challenge to his conviction and sentence. One of the issues raised was whether the “three strikes law” had been properly applied. In that context, the court determined that “the plain language of § 3559(c)(2)(F)(i) identifies any robbery in violation of § 2113, or an inchoate version of such a robbery — namely, attempt, conspiracy, or solicitation to commit the offense — as a serious violent felony.” Snype, 441 F.3d at 144. It went on to explain that, because the New York state robbery elements parallel those required, to establish robbery under the United States Code, New York state robbery convictions also qualified as serious violent felonies under § 3559(c)(2)(F)(i). Id. (emphasis added). Correctly noted by defendant in the instant case, the Second Circuit decision in Snype did not compare language to section 16 of Title 18 of the United States Code: “Snype held that New York robbery is a serious violent felony because it matches the term robbery, not because it matches the definition of a crime of violence for [i]mmigration purposes.”