Pascual v. Holder, No. 12-2798 (2d Cir. 2013)
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Petitioner, a citizen of the Dominican Republic, sought review of the BIA's order affirming the IJ's finding that he had been convicted of an aggravated felony and was ineligible for cancellation of removal. The court concluded that petitioner's New York state conviction under NYPL 220.39(1) constituted an aggravated felony, which deprived the court of jurisdiction to review the order of removal. The court also denied petitioner's additional motions as moot.
The court issued a subsequent related opinion or order on July 9, 2013.
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12-2798 Pascual v. Holder 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2012 (Submitted: February 5, 2013 Decided: February 19, 2013) Docket No. 12-2798 - - - - - - - - - - - - - - - - - - - -x Manuel Pascual, AKA Scarface Gomez, Petitioner, - v.Eric H. Holder, Jr., United States Attorney General, Respondent. - - - - - - - - - - - - - - - - - - - -x Before: JACOBS, Chief Judge, KEARSE and CARNEY, Circuit Judges. Petitioner, a citizen of the Dominican Republic, seeks 28 review of a Board of Immigration Appeals order, affirming an 29 immigration judge s finding that Manuel Pascual had been 30 convicted of an aggravated felony, and was therefore 31 ineligible for cancellation of removal from the United 32 States. 33 Pascual s New York state conviction under NYPL § 220.39(1) 34 constitutes an aggravated felony, which deprives this Court 35 of jurisdiction to review the order of removal. For the following reasons, we conclude that 1 2 3 4 5 6 7 8 9 10 11 12 13 THOMAS EDWARD MOSELEY, Law Offices of Thomas E. Moseley Newark, New Jersey, for Petitioner. BENJAMIN MARK MOSS, United States Department of Justice, Office of Immigration Litigation, for Respondent. PER CURIAM: Manuel Pascual, a citizen of the Dominican 14 Republic, petitions for review of a Board of Immigration 15 Appeals ( BIA ) decision to affirm an immigration judge s 16 ( IJ ) finding that Pascual had been convicted of an 17 aggravated felony, and was therefore ineligible for 18 cancellation of removal. 19 BIA s denial of a continuance to seek post-conviction relief 20 and moves for a stay of removal pending appeal, leave to 21 proceed in forma pauperis and appointment of counsel. 22 Government moves to dismiss Pascual s petition for review on 23 the ground that the BIA s determination that Pascual had 24 been convicted of an aggravated felony deprives this Court 25 of jurisdiction to review the agency s order of removal. 26 grant the Government s motion and dismiss Pascual s petition 27 because the BIA correctly determined that Pascual had been 28 convicted of an aggravated felony. 29 additional motions as moot. Pascual also seeks review of the 2 The We also deny Pascual s We 1 2 BACKGROUND Pascual was admitted to the United States as a legal 3 permanent resident in 1993. 4 with a Notice to Appear charging him with removability under 5 the Immigration & Nationality Act ( INA ) § 237(a)(2)(B)(i), 6 8 U.S.C. § 1227(a)(2)(B)(i), by reason of a 2000 Connecticut 7 state conviction for cocaine possession. 8 of 2011, he was served with an additional charging document 9 seeking his removal pursuant to INA § 237(a)(2)(A)(iii), 8 In 2003, Pascual was served Then in December 10 U.S.C. § 1227(a)(2)(A)(iii), by reason of an aggravated 11 felony, citing a 2008 New York state conviction for third- 12 degree criminal sale of a controlled substance, cocaine, in 13 violation of New York Penal Law ( NYPL ) § 220.39(1). 14 January of 2012, Pascual appeared by counsel before an IJ 15 and conceded removability based on the possession crime, but 16 challenged removability based on an aggravated felony 17 conviction. 18 removed to the Dominican Republic, finding that the 19 Government established removability based on Pascual s 20 Connecticut and New York convictions. 21 that the New York conviction was an aggravated felony and as 22 such, Pascual was statutorily ineligible for cancellation of In In an oral decision, the IJ ordered Pascual 3 The IJ also found 1 removal. 2 affirmed. Pascual appealed this decision to the BIA, which Pascual now seeks review in this Court. 3 4 DISCUSSION 5 Although this Court lacks jurisdiction to review final 6 orders of removal against aliens convicted of an aggravated 7 felony, see 8 U.S.C. § 1252(a)(2)(C), we have jurisdiction 8 to review constitutional claims or questions of law, 9 including whether a specific conviction constitutes an 10 aggravated felony. 11 Holder, 588 F.3d 767, 772 (2d Cir. 2009). 12 interpretations of law and the application of law to fact de 13 novo. 14 2008). 15 § 220.39 constitutes an aggravated felony, however, results 16 in the mandatory dismissal of Pascual s appeal. 17 v. Holder, 677 F.3d 97, 100 (2d Cir. 2012). 18 See 8 U.S.C. § 1252(a)(2)(D); Pierre v. We review See Alsol v. Mukasey, 548 F.3d 207, 210 (2d Cir. A determination that Pascual s conviction under NYPL See Higgins This Court has not previously decided whether a 19 conviction under NYPL § 220.39, a Class B felony, 20 constitutes an aggravated felony conviction. 21 Montesquieu v. Holder, 350 F. App x 569, 571 (2d Cir. 2009). 22 Some district courts in this Circuit have ruled that it is. 4 See 1 See Del Orbe v. Holder, 12 CIV. 1057 PAE, 2012 WL 3826182, 2 at *3-4 (S.D.N.Y. Aug. 27, 2012); United States v. Minotta- 3 Caravalle, 5:10-CR-14-01, 2010 WL 4975643, at *5 (D. Vt. 4 Nov. 30, 2010). 5 circuits are in accord. 6 Gen. of U.S., 425 F. App x 146, 149 (3d Cir. 2011); Griffith 7 v. Attorney Gen. of U.S., 400 F. App x 632, 635 (3d Cir. 8 2010); Clarke v. Holder, 386 F. App x 501, 503 (5th Cir. 9 2010). 10 We agree. Unpublished opinions in other See, e.g., Medina Lopez v. Attorney An aggravated felony is defined to include illicit 11 trafficking in a controlled substance (as defined in section 12 802 of Title 21), including a drug trafficking crime (as 13 defined in section 924(c) of Title 18). 14 1101(a)(43)(B). 15 state offense constitutes a felony punishable under the 16 Controlled Substances Act [ CSA 21 U.S.C. § 801, et seq.] 17 only if it proscribes conduct punishable as a felony under 18 that federal law. 19 (2006). 20 felony, it must correspond to an offense that carries a 21 maximum term of imprisonment exceeding one year under the 8 U.S.C. § The Supreme Court has held that such a Lopez v. Gonzales, 549 U.S. 47, 60 For a state drug offense to rank as an aggravated 5 1 CSA. 2 2008). Martinez v. Mukasey, 551 F.3d 113, 117 18 (2d Cir. 3 In deciding whether a state conviction corresponds to 4 an aggravated felony, we employ a categorical approach 5 under which the singular circumstances of an individual 6 petitioner s crimes should not be considered, and only the 7 minimum criminal conduct necessary to sustain a conviction 8 under a given statute is relevant. 9 Dep t of Justice, 544 F.3d 137, 143 (2d Cir. 2008) Gertsenshteyn v. U.S. 10 (quoting Dalton v. Ashcroft, 257 F.3d 200, 204 (2d Cir. 11 2001)). 12 § 220.39 would be punishable as a felony under federal 13 criminal law. 14 statute analogous to NYPL § 220.39 is 21 U.S.C. § 841(a)(1), 15 which prohibits, inter alia, the distribution of, or 16 possession with intent to distribute a controlled substance, 17 an offense punishable by a term of imprisonment greater than 18 one year. 19 The question, then, is whether the elements of NYPL See Lopez, 549 U.S. at 57. The federal Pascual relies on an unpublished Fifth Circuit decision 20 to argue that a conviction under of NYPL § 220.39 is not 21 categorically an aggravated felony because statutes that 22 punish offers to sell, see NYPL § 220.00(1), are not drug 6 1 trafficking crimes under the CSA. 2 App x 413, 416 (5th Cir. 2010). 3 held that distribution, within the meaning of 21 U.S.C. § 4 841(a)(1) does not require a sale to take place: The word 5 distribute means to deliver, [21 U.S.C.] § 802(11); and 6 deliver means the actual, constructive, or attempted 7 transfer of a controlled substance, [21 U.S.C.] § 802(8). 8 United States v. Wallace, 532 F.3d 126, 129 (2d Cir. 2008) 9 (emphasis added). Davila v. Holder, 381 F. This Court, however, has Therefore, even if Pascual did no more 10 than offer or attempt to sell cocaine, the state offense 11 would be conduct punishable as a federal felony, thus 12 rendering it an aggravated felony. 13 As a result of the BIA s correct finding that Pascual 14 was convicted of an aggravated felony, this Court lacks 15 jurisdiction over his petition for review, and we must grant 16 the Government s motion to dismiss. 17 consider Pascual s additional claims, including the IJ s 18 denial of a continuance. 19 152, 162-63 (2d Cir. 2007) (declining to address challenges 20 to IJ s denial of a continuance after concluding that the 21 Court lacked jurisdiction over petitioner s petition for 22 review due to the BIA s aggravated felony finding). Accordingly, we do not Cf. Blake v. Gonzales, 481 F.3d 7 1 2 For the foregoing reasons, the petition for review is dismissed for lack of jurisdiction. 8
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