On May 30, 2019, the Second Circuit withdrew the per curiam opinion in Thompson v. Barr, #17-3494, that was issued on May 13. The opinion found that NY assault in the second degree (NYPL § 120.05(1)) is an aggravated felony crime of violence for immigration purposes under the force clause of 18 USC § 16(a).
The panel opinion in Thompson did not discuss whether the fact that a crime can be committed by omission as well as by commission affects whether that offense “has as an element the use, attempted use, or threatened use of physical force.” 18 USC § 16(a). The pro se petitioner did not raise that issue, and it is pending before the Second Circuit in US v. Scott, #18-163 (argued Jan. 10, 2019). This probably accounts for the decision to withdraw the Thompson opinion.
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