Petitioner Joseph Hechavarria, an immigrant, has been ordered removed from the United States for having committed a crime of violence as defined by 18 U.S.C. § 16(a). That subsection applies to offenses that have "as an element the use, attempted use, or threatened use of physical force." The offense in question, second-degree assault in violation of New York Penal Law § 120.05(2), can be committed by omission. Under the categorical approach, does an offense that can be committed by omission rather than affirmative act necessarily entail the "use" of force within the meaning of § 16(a)?

Whether an offense that can be committed by omission rather than affirmative act necessarily entails the 'use' of force within the meaning of 18 U.S.C. § 16(a)