     16-2624
     Austin v. Sessions
                                                                                       BIA
                                                                                  Wright, IJ
                                                                               A039 746 160

                               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 TO A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1        At a stated term of the United States Court of Appeals for the
 2   Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the 10th day
 4   of July, two thousand seventeen.
 5
 6   PRESENT:
 7             ROBERT D. SACK,
 8             SUSAN L. CARNEY,
 9             CHRISTOPHER F. DRONEY,
10                  Circuit Judges.
11   _____________________________________
12
13   MARSHA EVANGELINE AUSTIN, AKA MARSHA
14   AUSTIN, AKA MARCIA AUSTIN, AKA MARSHE
15   AUSTIN, AKA MARCIA HUNT, AKA MARSHA
16   HUNT,
17                   Petitioner,
18
19                        v.                                         16-2624
20
21   JEFFERSON B. SESSIONS III, UNITED
22   STATES ATTORNEY GENERAL,
23                  Respondent.
24   _____________________________________
25
26   FOR PETITIONER:                      PETER L. MARKOWITZ (Rehana Jamal, Samantha
27                                        Hamidan, Marissa Wong, Legal Interns,
28                                        on the briefs), Immigration Justice
29                                        Clinic, Benjamin N. Cardozo School of
30                                        Law, New York, NY.
31
 1   FOR RESPONDENT:              D. NICHOLAS HARLING, Trial Attorney (Sheri
 2                                R. Glaser, Trial Attorney; Chad A.
 3                                Readler, Acting Assistant Attorney
 4                                General; Jessica A. Dawgert, Senior
 5                                Litigation Counsel, on the brief),
 6                                Office of Immigration Litigation,
 7                                United States Department of Justice,
 8                                Washington, DC.
 9
10        UPON DUE CONSIDERATION of this petition for review of a Board

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

12   ADJUDGED, AND DECREED that the petition for review is DENIED.

13        Petitioner Marsha Evangeline Austin seeks review of a July 22,

14   2016 decision of the BIA affirming a January 13, 2015 decision of

15   an Immigration Judge (“IJ”) ordering her removed and finding her

16   ineligible for cancellation of removal.     In re Marsha Evangeline

17   Austin, No. A039 746 160 (B.I.A. July 22, 2016), aff’g No. A039 746

18   160 (Immig. Ct. N.Y.C. Jan. 13, 2015).       We assume the parties’

19   familiarity with the underlying facts and procedural history of this

20   case, and the issues presented for review, to which we refer only

21   as needed to explain our decision to deny the petition.

22        We have reviewed the IJ’s decision as modified by the BIA (i.e.,

23   minus the IJ’s discretionary denial of cancellation of removal, an

24   issue that the BIA declined to reach).    See Xue Hong Yang v. U.S.

25   Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).      We generally

26   lack jurisdiction to review a final order of removal against an alien

27   such as Austin, who was found removable for an aggravated felony or

28   controlled substance offense conviction.      We have jurisdiction,


                                      2
1    however, to consider constitutional claims and questions of law.          8

2    U.S.C. §§ 1252(a)(2)(C), (D), 1227(a)(2)(A)(iii), (B).              Whether

3    Austin’s 1995 conviction under New York Penal Law (“NYPL”) §§ 110.00

4    and 220.39 for attempted third-degree criminal sale of a controlled

5    substance is an aggravated felony is a question of law over which

6    we have jurisdiction.     Vargas-Sarmiento v. U.S. Dep’t of Justice,

7    448 F.3d 159, 164 (2d Cir. 2006).

8    I.      Categorical Approach

9            The Immigration and Nationality Act (“INA”) defines “aggravated

10   felony” to include “illicit trafficking in a controlled substance

11   (as defined in [the Controlled Substances Act (‘CSA’)]).”           8 U.S.C.

12   § 1101(a)(43)(B).       “[A]   state    offense   constitutes   a    felony

13   punishable under the [CSA] only if it proscribes conduct punishable

14   as a felony under that federal law.”        Pascual v. Holder, 707 F.3d

15   403, 405 (2d Cir. 2013) (“Pascual I”) (internal quotation marks

16   omitted), adhered to on reh’g, 723 F.3d 156 (2d Cir. 2013) (“Pascual

17   II”).     “[W]e generally employ a ‘categorical approach’ to determine

18   whether the state offense is comparable to an offense listed in the

19   INA.”     Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2013).        “Under

20   this approach, we look ‘to whether the state statute defining the

21   crime of conviction categorically fits within the generic federal

22   definition of a corresponding aggravated felony.’”              Flores v.

23   Holder, 779 F.3d 159, 165 (2d Cir. 2015) (quoting Moncrieffe, 133

24   S. Ct. at 1684).      “[T]he singular circumstances of an individual

                                         3
1    petitioner’s crimes should not be considered, and only the minimum

2    criminal conduct necessary to sustain a conviction under a given

3    statute is relevant.”       Pascual I, 707 F.3d at 405 (internal

4    quotations marks omitted).

5          The agency correctly concluded that Austin is ineligible for

6    cancellation of removal because her 1995 conviction under NYPL

7    §§ 110.00 and 220.39 for attempted third-degree criminal sale of a

8    controlled substance is an aggravated felony.      See 8 U.S.C.

9    § 1229b(a)(3).    We held in Pascual I that a conviction under NYPL

10   § 220.39 is categorically an aggravated felony drug trafficking

11   crime.   707 F.3d at 405.   Although Austin argues that her conviction

12   falls outside this holding because she was convicted of an attempted

13   violation of § 220.39, her argument fails to persuade.     An attempt

14   to sell a controlled substance is an aggravated felony under the CSA.

15   Id.   Moreover, the INA provides that an attempt to commit an

16   aggravated felony is itself an aggravated felony.           8 U.S.C.

17   § 1101(a)(43)(U).

18         Notwithstanding Austin’s arguments to the contrary, the crime

19   of attempt under New York law categorically fits within the crime

20   of attempt under federal law.    Under NYPL § 110.00, “[a] person is

21   guilty of an attempt to commit a crime when, with intent to commit

22   a crime, he engages in conduct which tends to effect the commission

23   of such crime.”   N.Y. Penal Law § 110.00.    Under federal law, “[a]

24   person is guilty of an attempt to commit a crime if he or she (1) had

                                        4
1    the intent to commit the crime, and (2) engaged in conduct amounting

2    to a ‘substantial step’ towards the commission of the crime.”   United

3    States v. Martinez, 775 F.2d 31, 35 (2d Cir. 1985).     The New York

4    provision is “more stringent than the . . . ‘substantial step’

5    test,” People v. Acosta, 80 N.Y.2d 665, 670 (1993), and requires the

6    defendant to “have engaged in conduct that came dangerously near

7    commission of the completed crime,” People v. Denson, 26 N.Y.3d 179,

8    189 (2015) (internal quotation marks omitted).

9          Because a conviction under NYPL § 220.39 is categorically an

10   aggravated felony drug trafficking crime, and the New York crime of

11   attempt fits categorically within the federal crime of attempt, an

12   attempt to violate NYPL § 220.39 is categorically an aggravated

13   felony.

14   II.   “Attempt to Attempt” Argument

15         Austin argues that NYPL §§ 110.00 and 220.39, in combination,

16   could support a conviction for an “attempt to attempt” to sell a

17   controlled substance, a “double inchoate” crime that should not be

18   recognized as an aggravated felony under federal law.     She points

19   out that § 110.00 is an attempt provision; that § 220.39 criminalizes

20   (among other things) offers to sell; and that we held in the Pascual

21   decisions that the New York crime of offering to sell a controlled

22   substance is encompassed within the federal crime of attempting to

23   sell a controlled substance.   Pairing § 110.00 with § 220.39 would

24   impermissibly criminalize an attempt to attempt, she argues.

                                       5
1         We rejected this same argument in Hidalgo v. Lynch, 664 F. App’x

2    101 (2d Cir. 2016) (summary order).     Although Hidalgo is not binding,

3    its reasoning is persuasive.    Like the petitioner in Hidalgo, Austin

4    erroneously equates offers to sell with attempts to sell.            See

5    Hidalgo, 664 F. App’x at 103.      Contrary to Austin’s suggestion, we

6    did not equate offers with attempts in Pascual.     Rather, we held that

7    an offer to sell a controlled substance, as that crime is defined

8    under New York law, categorically satisfies the elements of an

9    attempted sale of a controlled substance, as that crime is defined

10   under federal law.   Pascual I, 707 F.3d at 405; Pascual II, 723 F.3d

11   at 159.   It does not follow that, because an attempted offer to sell

12   under New York law also satisfies the elements of an attempted sale

13   under federal law, New York law criminalizes an “attempt to attempt.”

14        As we concluded in Hidalgo, “[t]he crime of attempting to offer

15   is not a logical impossibility.”    Hidalgo, 644 F. App’x at 103.   NYPL

16   §§ 110.00 and 220.39 provide “that a person is guilty of an attempt

17   to sell or offer to sell a controlled substance in the third degree

18   when he or she intends unlawfully and knowingly to sell or offer to

19   sell a narcotic drug, and engages in conduct to effect that sale or

20   offer.”   Id.   Thus, “[f]or example, one who has prepared a written

21   offer of sale and attempts to deliver it to the intended offeree has

22   attempted to make an offer of sale, even if the offer never reaches

23   the intended recipient.”    Id.

24        In arguing that NYPL §§ 110.00 and 220.39 could be read together

                                         6
1    so broadly as to criminalize logically incoherent “attempts to

2    attempt,” Austin runs afoul of the Supreme Court’s directive that

3    courts should refrain from “apply[ing] legal imagination to the state

4    offense,” and determine instead whether there is “a realistic

5    probability, not a theoretical possibility, that the State would

6    apply its statute to conduct that falls outside the generic

7    definition of a crime.”   Moncrieffe, 133 S. Ct. at 1684-85 (internal

8    quotation marks omitted).    As we observed in Hidalgo, “New York

9    adheres to the general rule refusing to recognize an attempt to commit

10   a crime that is itself an attempt.”    Hidalgo, 644 F. App’x at 103.

11   As in Hidalgo, here we “have no reason to conclude that a conviction

12   for attempt to violate N.Y. Penal Law § 220.39 can rest on an attempt

13   to attempt a drug sale,” id. at 104, and Austin has not identified

14   any conviction or prosecution in New York for an “attempt to attempt”

15   to sell drugs under NYPL §§ 110.00 and 220.39.          We therefore

16   reject as speculative Austin’s argument.

17        We further decline to review the agency’s law of the case

18   determinations, which Austin did not challenge in her opening brief.

19   See Castro v. Holder, 597 F.3d 93, 95 n.2 (2d Cir. 2010).     We have

20   considered Austin’s remaining arguments and find them to be without

21   merit.

22        For the foregoing reasons, the petition for review is DENIED.

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


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