Pascual v. Holder

12-2798
Pascual v. Holder
UNITED STATES COURT OF APPEALS 1
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FOR THE SECOND CIRCUIT 3
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August Term, 2012 5
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(Submitted: February 5, 2013 Decided: February 19, 2013) 8
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Docket No. 12-2798 10
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Manuel Pascual, AKA Scarface Gomez, 14
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Petitioner, 16
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- v.- 18
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Eric H. Holder, Jr., United States Attorney General, 20
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Respondent. 22
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Before: JACOBS, Chief Judge, KEARSE and CARNEY, 24
Circuit Judges. 25
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Petitioner, a citizen of the Dominican Republic, seeks 27
review of a Board of Immigration Appeals order, affirming an 28
immigration judge’s finding that Manuel Pascual had been 29
convicted of an aggravated felony, and was therefore 30
ineligible for cancellation of removal from the United 31
States. For the following reasons, we conclude that 32
Pascual’s New York state conviction under NYPL § 220.39(1) 33
constitutes an aggravated felony, which deprives this Court 34
of jurisdiction to review the order of removal. 35

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