18-2134 Rodriguez Urena v. Barr BIA Laforest, IJ A045 875 077 

## 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 CI TING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NO TATION “SUMMARY ORDER”). A PARTY CITING TO 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 Fole y Square, in the City of New York, on the 20 th day of June, two thousand nineteen. PRESENT: JON O. NEWMAN, PETER W. HALL, DENNY CHIN, Circuit Judges.

_____________________________________ RAUL ANGEL RODRIGUEZ URENA, AKA RAUL A. RODRIGUEZ, AKA RAUL RODRIGUEZ, Petitioner , v. 18-2134 WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent

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_____________________________________ FOR PETITIONER: Heidi J. Meyers, Law Office of Heidi J. Meyers, New York, NY.
FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney General; Derek C. Julius, Assistant Direct or; Zoe J. Heller, Senior Litigation Counsel, Office of Immigration Litigation, United States Department of Justice, Washington, DC.2 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 DENIED. Petitioner Raul Angel Rodriguez Urena, a native and citizen of the Dominican Republic, seeks review of a July 5, 2018 decision of the BIA affirming an April 11, 2017 decision of an Immigration Judge (“IJ”) ordering him removed based on his convictions under the General Laws of Massachusetts (“Mass. Gen. Laws”), ch. 94C § 32, for possession with intent to distribute a controlled substance and finding him ineligib le for a waiver of inadmissibility. In re Raul Angel Rodriguez Urena, No. A 045 875 077 (B.I.A. July 5, 2018), aff’g No. A 045 875 077 (Immig. Ct. N.Y. City Apr. 11, 2017). The agency sustai ned removability on both charged grounds: that Rodriguez Urena’s Massachusetts convictions we re crimes involving moral turpitude (“CIMTs”) under 8 U.S.C. § 1182(a)(2)(A)(i)(I) and were controlled substance offenses under § 1182(a)(2)(A)(i)(II) because they involved possession with intent to distribute heroin. We assume the parties’ familiarity with the underlying facts, the pro cedural history of the case, and the issues on appeal. We have reviewed the IJ’s de cision as modified by the BIA. See Xue Hong Yang v. U.S. Dep’t of Justice , 426 F.3d 520, 522 (2d Cir. 2005). Our jurisdiction is limited to constitutional claims and questions of law when reviewing a fi nal order of removal for an individual, like Rodriguez Urena, who is deemed removable for having been convicted of controlled substance offenses and CIMTs. Our jurisdiction extend s, nonetheless, to the question of whether a conviction is a removable offense. 8 U.S.C. § 1252(a)(2)(C), (D); Lanferman v. BIA , 576 F.3d3 84, 87–88 (2d Cir. 2009) ( per curiam ). We review the determ ination of such questions de novo

. See Pierre v. Holder , 588 F.3d 767, 772 (2d Cir. 2009). Rodriguez Urena does not challenge the agency ’s determination that he is removable for having been convicted of CIMTs, and so any challenge to removability on this ground is abandoned. See Yueqing Zhang v. Gonzales , 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005) (providing that issues not raised in an opening brief are waived). Accordingly, we address only whether his convictions are also controlled substance offenses a nd, if so, whether they render him ineligible for a waiver of inadmissibility under 8 U.S.C. § 1182(h). Rodriguez Urena was charged as removabl e under the Immigration and Nationality Act (“INA”) provision that instructs th at an alien is removable if convi cted of “a violation of (or a conspiracy or attempt to violate) any law or regul ation of a State, the United States, or a foreign country relating to a controlled substance (as de fined in section 802 of Title 21).” 8 U.S.C. § 1182(a)(2)(A)(i)(II). He concedes that he pl eaded guilty to two counts of unlawful possession with intent to distribute a Cla ss A controlled substance in viol ation of Mass. Gen. Law ch. 94C § 32, but he argues that the state statute crimina lizes more drugs than the federal controlled substance schedules and is thus not a categorical match with the statutory ground for removability. In determining whether a conviction const itutes a removable offense, we apply the categorical approach to ascertain “whether th e state statute defining the crime of conviction categorically fits within the generic federal de finition of a corresponding” offense listed in the
INA. Flores v. Holder , 779 F.3d 159, 165 (2d Cir. 2015) (quoting Moncrieffe v. Holder , 569 U.S. 184, 190 (2013)). Under this approach, we look onl y to the statute of c onviction to determine whether there is a categorical match and “‘pres ume that the conviction rested upon nothing more4 than the least of the acts crimin alized’ under the state statute.” Mellouli v. Lynch , 135 S. Ct. 1980, 1986 (2015) (quoting Moncrieffe , 569 U.S. at 190–91). The Massachusetts statute at issue provides th at a person is guilty of unlawful possession with intent to distribute a Class A controlled substance if he “knowingly or intentionally manufactures, distributes, dispenses, or possesses with intent to manufacture, distribute or dispense a controlled substance in Class A of section th irty-one.” Mass. Gen. Laws ch. 94C § 32(a). Heroin is listed as a Class A controlled substance. See id. § 31(b)(10). The parties, however, do not dispute that this Massachusetts statute covers more substances than the federal schedule, and so we assume there is no categorical match. We must next determine whether the state stat ute is divisible, that is, whether the specific “Class A” controlled substance implicated—in this case heroin—i s an element of the crime or simply a factual means of committing the offense. See Mathis v. United States , 136 S. Ct. 2243, 2249 (2016). This “threshold inquiry” is satisfied if “a state court decision de finitively answers the question.” Id . at 2256. As the BIA found, Mass. Gen. Laws ch. 94C § 32 is divisible because Massachusetts case law is clear: the specific cont rolled substance charged is an element of the offense. See Commonwealth v. MacDonald , 945 N.E.2d 260, 265 (Mass. 2011) (explaining that the prosecution must “prove beyond a reasonable doubt that the substa nce at issue is a particular drug because such proof is an element of the crime charged ” (emphasis added) (internal quotation marks omitted)); Commonwealth v. Vasquez , 923 N.E.2d 524, 534 (Mass. 2010) (same). Proof of the specific controlled substance is necessary because the prosecution otherwise could not prove beyond a reasonable doubt that the substance was, for example, ‘“cocaine’ and not another drug or ersatz cocaine.” Id.5 Having properly determined that Rodriguez Uren a’s statute of conviction is divisible, the BIA was entitled to look at the record documents to ascertain the specific controlled substance upon which Rodriguez Urena’s convictions rested. See Descamps v. United States , 570 U.S. 254, 263–64 (2013); Mathis , 136 S. Ct. at 2256–57. The criminal complaint for Rodriguez Urena’s relevant convictions charged as count one a vi olation of Mass. Gen. Laws ch. 94C § 32(a) and identified the controlled substance involved as heroin. His guilty plea to that charge, which is memorialized in a certificate of disposition specifying the same statutory violation and offense date as that identified in the complaint, was sufficient to establish th at his conviction involved heroin. See Johnson v. United States , 559 U.S. 133, 144 (2010) (notin g that courts applying modified categorical approach may “c onsult[] the trial record—including charging documents ” (emphasis added)); Shepard v. United States , 544 U.S. 13, 26 (2005) (limiting courts’ inquiry to “the charging document, . . . or to some compar able judicial record of this information”); see also Medina-Lara v. Holder , 771 F.3d 1106, 1113 (9th Cir. 2014) ( holding that, under the modified categorical approach, “the government must demons trate that the [criminal judgment] clearly and convincingly shows that [petitioner] pleaded guilty to the element as alleged in the complaint”). Because heroin is a controlled substa nce under federal law, Rodriguez Urena was removable as charged. See 21 U.S.C. §§ 802(6), 812(b)(10) (ide ntifying heroin as a Schedule I controlled substance); 8 U.S.C. § 1182(a)(2)(A )(i)(II). Moreover, th e controlled substance offense rendered Rodriguez Urena ineligible for a waiver of inadmissibility under 8 U.S.C. § 1182(h). Section 1182(h) provides for a discreti onary waiver of certain criminal grounds of inadmissibility. For drug offenses, however, the wa iver is strictly limited: the Attorney General may waive the controlled substan ce ground of removability only “as it relates to a single offense6 of simple possession of 30 grams or less of marijuana.” Id . The agency found Rodriguez Urena ineligible for a § 1182(h) waiver because he ha d two controlled substance convictions involving heroin. Although the BIA may have erred in rely ing on both convictions given that the record only specifies the substance invol ved in one conviction, the single heroin c onviction bars relief because it involved both distribution a nd a drug other than marijuana. Finally, Rodriguez Urena argues that even if he is removable for controlled substance convictions, the Supreme Court’s decision in Judulang v. Holder , 565 U.S. 42 (2011), supports his eligibility for a § 1182(h) waiver. His argument is misplaced because in Judulang , the Supreme Court considered the BIA’s method of determining when an alien charged as deportable under 8 U.S.C. § 1227 should be found eligible to apply for a § 1182(c) waiver of inadmissibility (a provision that has since been repe aled). 565 U.S. at 48–49. The same issues are not present here because Rodriguez Urena was charged as inadmissible under § 1182, not deportable under § 1227; so, he could (and did) apply fo r a waiver of inadmissibility, but, as discussed above, he was ineligible under the terms of § 1182(h). We have considered Rodriguez Urena’s rema ining arguments and find them to be without merit. For the foregoing reas ons, the petition for review is DENIED

. FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court