21-6227

Lopez v. Garland

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY 

ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF 

APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY 

ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL 

APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY 

CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY 

COUNSEL. 

At a stated term of the United States Court of Appeals for the Second 

Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 

Square, in the City of New York, on the 30th day May, two thousand twentyfour. 

PRESENT: 

JOSÉ A. CABRANES,

SUSAN L. CARNEY,

BETH ROBINSON,

Circuit Judges. 

_____________________________________ 

GILBERTO ALEXANDER LOPEZ, 

 Petitioner, 

v. No. 21-6227 

 

MERRICK B. GARLAND, UNITED 

STATES ATTORNEY GENERAL, 

 Respondent. 

_____________________________________ 

FOR PETITIONER: JOHN H. PENG (Yuriy Pereyaslavskiy, Rohmah 

Ashraf Javed, on the brief), Prisoners’ Legal 

Services of New York, Albany, NY. 
2 

FOR RESPONDENT: IMRAN R. ZAIDI (Brian M. Boynton, Jennifer J. 

Keeney, Melissa K. Lott, on the brief), United 

States Department of Justice, Washington, 

D.C.

UPON DUE CONSIDERATION of this petition for review of a Board of 

Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, 

AND DECREED that the petition for review is GRANTED and the matter is 

remanded for further proceedings consistent with this order. 

Petitioner Gilberto Alexander Lopez, a native and citizen of Colombia, seeks 

review of a March 25, 2021 decision of the BIA affirming a September 24, 2020 

decision of an Immigration Judge (“IJ”), which denied his motion to terminate 

removal proceedings and sustained the government’s two charges of 

removability. In re Gilberto Alexander Lopez, No. A061 304 618 (B.I.A. Mar. 25, 

2021), aff’g No. A061 304 618 (Immig. Ct. Napanoch, N.Y. Sept. 24, 2020). We 

assume the parties’ familiarity with the underlying facts, arguments, and 

procedural history, to which we refer only as necessary to explain our decision. 

In 2018, Lopez pled guilty to criminal sale of a narcotic drug in the third 

degree, in violation of New York Penal Law (“N.Y.P.L.”) § 220.39(1). Lopez’s 

conviction arose from the sale of cocaine.
3 

Following Lopez’s state conviction, the government initiated removal 

proceedings, alleging that Lopez was removable for having (1) an aggravated 

felony conviction for illicitly trafficking a controlled substance under 8 U.S.C. 

§§ 1227(a)(2)(A)(iii), 1101(a)(43)(B), and (2) a conviction “relating to a controlled 

substance” offense under 8 U.S.C. § 1227(a)(2)(B)(i). The government cited

Lopez’s N.Y.P.L. § 220.39(1) offense to support both charges. In response, Lopez 

filed a motion to terminate the removal proceedings in which he argued that his 

state offense was not a qualifying conviction under either statutory ground.

The IJ disagreed, concluding that § 220.39(1) was divisible because the 

specific drug involved—cocaine—was an element, not simply a means of 

committing the offense. Applying the modified categorical approach, the IJ 

concluded that Lopez’s conviction for selling cocaine involved and related to a 

controlled substance, and Lopez was thus removable on both alleged bases for 

removal.

The BIA dismissed Lopez’s appeal. Based on its understanding of our

decision in Pascual v. Holder, 707 F.3d 403, 404–05 (2d Cir.), aff’d on reh’g, 723 F.3d 

156 (2d Cir. 2013), the BIA concluded that a conviction under § 220.39(1) is 

categorically an aggravated felony drug trafficking offense under 8 U.S.C. 
4 

§§ 1227(a)(2)(A)(iii), 1101(a)(43)(B). Although the BIA concluded that Lopez was 

“removable as charged,” Administrative Record at 4, the BIA did not expressly 

discuss the IJ’s alternative basis for removal: that Lopez had a conviction “relating 

to a controlled substance” offense under 8 U.S.C. § 1227(a)(2)(B)(i). Nor did it

address the government’s argument that even if a conviction under § 220.39(1) is 

not an aggravated felony ground for removal under § 1227(a)(2)(A)(iii) because of 

a categorical mismatch between § 220.39(1) and the federal Controlled Substances 

Act (CSA), it is nevertheless a conviction “related to” a controlled substance 

offense, and thus an independent basis for removal under § 1227(a)(2)(B)(i). 

In their initial briefing before this Court, the parties agreed that the BIA 

misunderstood our holding in Pascual. They acknowledged that Pascual

answered only whether the “conduct element” of § 220.39 was a categorical match 

to the conduct prohibited under 21 U.S.C. § 841(a)(1)—specifically, whether a 

“sale” under § 220.39 fell within the meaning of “distribution” under federal law. 

Pascual did not purport to answer whether a “narcotic drug” under New York’s 

drug schedules was a categorical match with a “controlled substance” under the 

federal drug schedules, or even whether the categorical approach should apply to 

this question.
5 

After oral argument in December 2022, we delayed our decision and queued 

Lopez’s petition behind other cases raising similar questions. We directed the 

parties to file supplemental briefing in response to United States v. Chaires, 88 F.4th 

172 (2d Cir. 2023), the most recent of these cases. The parties agree that under 

Chaires, the categorical approach applies to our assessment of § 220.39(1), and

because New York’s definition of a “narcotic drug” under § 220.39(1) covered

isomers of cocaine not listed in the federal drug schedules, Lopez’s conviction was 

not a categorical match to the CSA and thus did not constitute an aggravated 

felony for purposes of § 1227(a)(2)(A)(iii).

Lopez and the government part ways, however, with respect to the ultimate 

disposition of this case. Lopez argues that the categorical mismatch 

determination is dispositive as to both grounds of removal; his conviction is 

neither an aggravated felony under § 1227(a)(2)(A)(iii), nor a conviction “relating 

to” a controlled substance under § 1227(a)(2)(B)(i). In contrast, the government 

argues that the BIA did not address its secondary argument for removal: that 

Lopez’s § 220.39(1) conviction is a conviction “relating to” a controlled substance

under § 1227(a)(2)(B)(i), even if it is not a categorical match for the purposes of the 

aggravated felony analysis under § 1227(a)(2)(A)(iii). The government thus 
6 

urges us to remand for further proceedings before the agency on this question. 

We adopt the government’s proposed approach. Because neither the IJ nor 

the BIA addressed the government’s alternative argument, we will remand so the 

BIA can decide the question in the first instance. 

For the foregoing reasons, we GRANT Lopez’s petition for review, 

VACATE the order of the BIA, and REMAND this matter for further proceedings 

consistent with this order.

FOR THE COURT: 

Catherine O’Hagan Wolfe, 

Clerk of Court