12-2798

Pascual v. Holder

1 UNITED STATES COURT OF APPEALS

2

3 FOR THE SECOND CIRCUIT

4

5 August Term, 2012

6

7

8 (Submitted: February 5, 2013 Decided: February 19, 2013)

9

10 Docket No. 12-2798

11

12 - - - - - - - - - - - - - - - - - - - -x

13

14 Manuel Pascual, AKA Scarface Gomez,

15

16 Petitioner,

17

18 - v.-

19

20 Eric H. Holder, Jr., United States Attorney General,

21

22 Respondent.

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24 Before: JACOBS, Chief Judge, KEARSE and CARNEY,

25 Circuit Judges.

26

27 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. For the following reasons, we conclude that

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.
1 THOMAS EDWARD MOSELEY, 

2 Law Offices of Thomas E. Moseley

3 Newark, New Jersey, for

4 Petitioner.

5

6 BENJAMIN MARK MOSS, 

7 United States Department of 

8 Justice, Office of Immigration

9 Litigation, for Respondent.

10

11 PER CURIAM:

12

13 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. Pascual also seeks review of the

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. The

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. We

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. We also deny Pascual’s

29 additional motions as moot. 

2
1 BACKGROUND

2 Pascual was admitted to the United States as a legal

3 permanent resident in 1993. In 2003, Pascual was served

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. Then in December

8 of 2011, he was served with an additional charging document

9 seeking his removal pursuant to INA § 237(a)(2)(A)(iii), 8

10 U.S.C. § 1227(a)(2)(A)(iii), by reason of an aggravated

11 felony, citing a 2008 New York state conviction for third12 degree criminal sale of a controlled substance, cocaine, in

13 violation of New York Penal Law (“NYPL”) § 220.39(1). In

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. In an oral decision, the IJ ordered Pascual

18 removed to the Dominican Republic, finding that the

19 Government established removability based on Pascual’s

20 Connecticut and New York convictions. The IJ also found

21 that the New York conviction was an aggravated felony and as

22 such, Pascual was statutorily ineligible for cancellation of

3
1 removal. Pascual appealed this decision to the BIA, which

2 affirmed. 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. See 8 U.S.C. § 1252(a)(2)(D); Pierre v.

11 Holder, 588 F.3d 767, 772 (2d Cir. 2009). We review

12 interpretations of law and the application of law to fact de

13 novo. See Alsol v. Mukasey, 548 F.3d 207, 210 (2d Cir.

14 2008). A determination that Pascual’s conviction under NYPL

15 § 220.39 constitutes an aggravated felony, however, results

16 in the mandatory dismissal of Pascual’s appeal. See Higgins

17 v. Holder, 677 F.3d 97, 100 (2d Cir. 2012).

18 This Court has not previously decided whether a

19 conviction under NYPL § 220.39, a Class B felony,

20 constitutes an aggravated felony conviction. See

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
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. Minotta3 Caravalle, 5:10-CR-14-01, 2010 WL 4975643, at *5 (D. Vt.

4 Nov. 30, 2010). We agree. Unpublished opinions in other

5 circuits are in accord. See, e.g., Medina Lopez v. Attorney

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 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).” 8 U.S.C. §

14 1101(a)(43)(B). The Supreme Court has held that such a

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.” Lopez v. Gonzales, 549 U.S. 47, 60

19 (2006). For a state drug offense to rank as an aggravated

20 felony, “it must correspond to an offense that carries a

21 maximum term of imprisonment exceeding one year under the

5
1 CSA.” Martinez v. Mukasey, 551 F.3d 113, 117–18 (2d Cir.

2 2008).

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.’” Gertsenshteyn v. U.S.

9 Dep’t of Justice, 544 F.3d 137, 143 (2d Cir. 2008)

10 (quoting Dalton v. Ashcroft, 257 F.3d 200, 204 (2d Cir.

11 2001)). The question, then, is whether the elements of NYPL

12 § 220.39 would be punishable as a felony under federal

13 criminal law. See Lopez, 549 U.S. at 57. The federal

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 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. Davila v. Holder, 381 F.

2 App’x 413, 416 (5th Cir. 2010). This Court, however, has

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). 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. Accordingly, we do not

17 consider Pascual’s additional claims, including the IJ’s

18 denial of a continuance. Cf. Blake v. Gonzales, 481 F.3d

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). 

7
1 For the foregoing reasons, the petition for review is

2 dismissed for lack of jurisdiction.

8