     16-4214
     Berhane v. Barr
                                                                                   BIA
                                                                            Connelly, IJ
                                                                           A079 724 145

                            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
 2   for the Second Circuit, held at the Thurgood Marshall
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 20th day of July, two thousand twenty.
 5
 6   PRESENT:
 7            REENA RAGGI,
 8            PETER W. HALL,
 9            DENNY CHIN,
10                 Circuit Judges.
11   _____________________________________
12
13   EZRA BERHANE,
14            Petitioner,
15
16                     v.                                        16-4214
17                                                               NAC
18   WILLIAM P. BARR, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                   Gregory Osakwe, Esq., Hartford,
24                                     CT.
25
26   FOR RESPONDENT:                   Joseph H. Hunt, Assistant Attorney
27                                     General, Civil Division; Douglas
28                                     E. Ginsburg, Assistant Director,
29                                     Office of Immigration Litigation;
30                                     Karen L, Melnik, Trial Attorney,
31                                     Office of Immigration Litigation,
32                                     United States Department of
 1                                        Justice, Washington, DC.

 2          UPON DUE CONSIDERATION of this petition for review of a

 3   Board of Immigration Appeals (“BIA”) decision, it is hereby

 4   ORDERED, ADJUDGED, AND DECREED that the petition for review

 5   is DENIED.

 6          Petitioner    Ezra       Berhane,       a    native    and   citizen        of

 7   Ethiopia, seeks review of a November 22, 2016, decision of

 8   the     BIA   affirming     a    December      8,     2015,   decision       of    an

 9   Immigration Judge (“IJ”) finding Berhane removable for an

10   aggravated      felony    and        denying       cancellation     of    removal,

11   asylum,       withholding       of    removal,       and   relief    under        the

12   Convention Against Torture (“CAT”) as to Ethiopia. 1                         In re

13   Ezra Berhane, No. A 079 724 145 (B.I.A. Nov. 22, 2016), aff’g

14   No. A 079 724 145 (Immig. Ct. Batavia Dec. 8, 2015).                      We assume

15   the     parties’    familiarity        with    the     underlying        facts    and

16   procedural history in this case.

17          Our jurisdiction to review Berhane’s final order of

18   removal is limited to “constitutional claims or questions of

19   law.”     8 U.S.C. § 1252(a)(2)(D).            We review de novo Berhane’s

20   challenge to the agency’s aggravated felony determination.

21   Pascual v. Holder, 707 F.3d 403, 404 (2d Cir. 2013) (per

22   curiam),       adhered to on reh’g, 723 F.3d 156 (2d Cir. 2013)


     1   The agency’s grant of CAT relief as to Eritrea remains in place.
                                              2
 1   (per curiam).           We find no error in the agency’s conclusion

 2   that Berhane’s conviction is an aggravated felony that bars

 3   him from cancellation of removal and asylum.

 4        An individual who has been convicted of an aggravated

 5   felony is ineligible for cancellation of removal and asylum.

 6   8   U.S.C.    §§   1158(b)(2)(A)(ii),         (B)(i),   1229b(a)(3).        In

 7   relevant      part,      an   aggravated      felony    includes       “illicit

 8   trafficking in a controlled substance (as defined in section

 9   802 of Title 21), including a drug trafficking crime (as

10   defined      in    section    924(c)    of    Title     18).”      8    U.S.C.

11   § 1101(a)(43)(B).          “[T]he term ‘drug trafficking crime’ means

12   any felony punishable under the Controlled Substances Act (21

13   U.S.C. 801 et seq.).”          18 U.S.C. § 924(c)(2).       The Controlled

14   Substances        Act    prohibits     “possess[ion]      with    intent    to

15   manufacture,        distribute,        or     dispense,     a      controlled

16   substance.”        21 U.S.C. § 841(a)(1).          Berhane was convicted

17   under NYPL § 220.16(1).              “A person is guilty of criminal

18   possession of a controlled substance in the third degree when

19   he knowingly and unlawfully possesses . . . a narcotic drug

20   with intent to sell it.”             NYPL § 220.16(1).          We have held

21   that New York’s definition of sale is a categorical match to

22   the analogous federal statute.              See Pascual, 707 F.3d at 405.

23   Accordingly, possession with intent to sell in New York is a

                                            3
 1   categorical match to possession with intent to distribute

 2   under 21 U.S.C. § 841(a)(1).           Id.; see also Espinal v. Lynch,

 3   665 F. App’x 65, 66 (2d Cir. 2016) (unpublished) (applying

 4   Pascual to § 220.16(1)).             Berhane raises no arguments that

 5   would require us to reconsider that conclusion.

 6       Accordingly, the only remaining forms of relief were

 7   withholding of removal and protection under the CAT.                        The

 8   agency     found      that    Berhane’s       conviction      was    also     a

 9   particularly       serious    crime        that   barred   withholding       of

10   removal.       8   U.S.C.    § 1231(b)(3)(B)(ii).            It   denied    CAT

11   relief, finding that Berhane had not met his burden of proof.

12   Berhane has abandoned these forms of relief by not challenging

13   these dispositive findings in his brief.              See Norton v. Sam’s

14   Club,    145   F.3d    114,    117    (2d     Cir.   1998)    (“Issues      not

15   sufficiently argued in the briefs are considered waived and

16   normally will not be addressed on appeal.”).

17       For the foregoing reasons, the petition for review is

18   DENIED.    All pending motions and applications are DENIED and

19   stays VACATED.

20                                        FOR THE COURT:
21                                        Catherine O’Hagan Wolfe,
22                                        Clerk of Court
23




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