11-1496-ag
Pennant v. Holder

                          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 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 31st day of August, two thousand twelve.

PRESENT: RALPH K. WINTER,
         REENA RAGGI,
         GERARD E. LYNCH,
                   Circuit Judges.

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MORRIS ANTONIA PENNANT,
                                 Petitioner,

                         v.                                              No. 11-1496-ag

ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
                                 Respondent.
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APPEARING FOR APPELLANT:                          JONATHAN ROMBERG (Saranne Weimer,
                                                  Kimberly Franko, on the brief), Seton Hall
                                                  University School of Law, Center for Social
                                                  Justice, Newark, New Jersey.

APPEARING FOR APPELLEE:                           ADA E. BOSQUE, Senior Litigation Counsel
                                                  (Stuart F. Delery, Acting Assistant Attorney
                                                  General, William C. Peachey, Assistant Director,
                                                  Eric W. Marsteller, Trial Attorney, on the brief),
                                          Office of Immigration Litigation, Civil Division,
                                          United States Department of Justice, Washington,
                                          D.C.

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the petition for review of the March 29, 2011 decision of the Board of

Immigration Appeals (“BIA”) is GRANTED, the order of removal is VACATED, and the

case REMANDED.

       Morris Antonia Pennant, a native and citizen of Jamaica, petitions for review of the

BIA’s decision dismissing his appeal from a January 12, 2011 decision of Immigration Judge

(“IJ”) John B. Reid finding Pennant removable and denying his application for cancellation

of removal. In re Morris Antonia Pennant, No. A043 219 731 (B.I.A. Mar. 29, 2011), aff’g

No. A043 219 731 (Immig. Ct. Batavia, N.Y. Jan. 12, 2011). Under the circumstances, we

review only the BIA’s decision. See Dong Gao v. BIA , 482 F.3d 122, 125 (2d Cir. 2007).

The applicable standards of review are well established. See 8 U.S.C. § 1252(b)(4)(B);

Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). We assume the parties’

familiarity with the facts and record of prior proceedings, which we reference only as

necessary to explain our decision to grant the petition and remand for further proceedings.

       Although we generally lack jurisdiction to review a final order of removal against an

alien found removable by reason of having committed an aggravated felony, see 8 U.S.C.

§ 1252(a)(2)(C), we retain jurisdiction to review constitutional claims and questions of law,

see id. § 1252(a)(2)(D). Pennant’s petition raises questions of law—namely, whether the


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BIA erred in concluding that Pennant’s New York attempted sale of marijuana conviction,

see N.Y. Penal Law § 221.40, was an aggravated felony conviction, see 8 U.S.C.

§ 1101(a)(43)(B), and, thus, further erred in concluding that Pennant was statutorily

ineligible for cancellation of removal, see id. § 1229b(a)(3).

       Consistent with this court’s precedent, the agency concluded that Pennant’s attempted

sale of marijuana conviction does not categorically qualify as an aggravated felony. See

Martinez v. Mukasey, 551 F.3d 113, 122 (2d Cir. 2008). Pennant charges that the BIA

nevertheless erred in identifying his marijuana conviction as an aggravated felony under the

modified categorical approach. We agree.

       The modified categorical approach involves a two-step inquiry. At the first step, the

agency must “determine if the [state criminal] statute is divisible, such that some categories

of proscribed conduct render an alien removable and some do not.” Lanferman v. BIA, 576

F.3d 84, 88–89 (2d Cir. 2009) (internal quotation marks omitted). If the statute is divisible,

the agency must proceed to the second step, “consult[ing] the record of conviction to

ascertain the category of conduct of which the alien was convicted.” Id. at 89 (internal

quotation mark omitted).

       At the first step, the BIA here failed to consider whether N.Y. Penal Law § 221.40 is

divisible. Rather, it simply assumed divisibility, focusing exclusively on the second step of

analysis. Accordingly, we grant Pennant’s petition and remand for the BIA to decide in the

first instance whether the statute is divisible and to explain its reasoning. See, e.g., James

v. Mukasey, 522 F.3d 250, 259 (2d Cir. 2008).

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       We are not persuaded otherwise by the government’s citation to the BIA’s recent

precedential opinion, In re Lanferman, 25 I. & N. Dec. 721 (B.I.A. 2012), clarifying the

agency’s approach to divisibility analysis. That precedential opinion postdates by almost a

year the unpublished decision here, which, as we have already explained, did not engage in

any divisibility analysis. Further, a petition for review of the Lanferman opinion is already

pending in this court, see Lanferman v. Holder, No. 12-1372 (2d Cir. Apr. 6, 2012). Thus,

we have no occasion here to decide whether the BIA’s newly clarified approach to

divisibility is entitled to deference under Chevron U.S.A., Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837, 843–44 (1984) or otherwise.

       A further concern arises at the second step. The BIA relied on an affidavit of probable

cause prepared by the arresting officer, which stated that Pennant sold marijuana for

remuneration, to support its conclusion that Pennant’s marijuana conviction constituted an

aggravated felony. The BIA’s analysis in reaching this conclusion is insufficient to permit

meaningful appellate review. See Poradisova v. Gonzales, 420 F.3d 70, 77 (2d Cir. 2005).

       Under the modified categorical approach, the agency may consider only those facts

to which a defendant actually and necessarily pleaded in order to establish the elements of

the offense, as indicated by the record of conviction, which may include the charging

document, a written plea agreement, or a plea colloquy transcript. See Akinsade v. Holder,

678 F.3d 138, 144 (2d Cir. 2012). A police report detailing the circumstances under which

the crime was committed is generally not a document considered in modified categorical


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analyses. See Dulal-Whiteway v. U.S. Dep’t of Homeland Sec., 501 F.3d 116, 128-29 (2d

Cir. 2007) (listing materials that have been considered permissible), abrogated on other

grounds by Nijhawan v. Holder, 557 U.S. 29, 33. The BIA here stated that (1) under New

York law, “a criminal action commences with the filing of an accusatory instrument” and (2)

in this local court proceeding, the officer’s affidavit was the “accusatory instrument” that

commenced the action. J.A. 48. We have no reason to doubt that this correctly describes

New York law and practice. Nevertheless, in the absence of a transcript of the guilty plea

colloquy, the agency did not consider whether, in light of the probable cause affidavit’s dual

role as both police report and local court charging document, Pennant actually and

necessarily admitted the particular facts alleged in the affidavit’s “to wit” clause in order to

establish elements of the offense. See Akinsade v. Holder, 678 F.3d at 144; see also Dickson

v. Ashcroft, 346 F.3d 44, 52 (2d Cir. 2003) (stating that modified categorical approach

“prohibits reference to or examination of the particular factual circumstances underlying”

conviction (emphasis in original)). In short, on remand, the agency needs to consider further

whether the entirety of an affidavit serving such a dual purpose can be considered part of the

record of conviction for purposes of modified categorical analysis.




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       For both of the foregoing reasons, Pennant’s petition for review is GRANTED, the

order of removal VACATED, and the case REMANDED for further proceedings consistent

with this order.*

                                           FOR THE COURT:
                                           CATHERINE O’HAGAN WOLFE, Clerk of Court




       *
        Those further proceedings may properly be informed by any discussion this court
renders on the petition in Lanferman v. Holder, No. 12-1372 (2d Cir. Apr. 6, 2012), as well
as by any Supreme Court decision in Moncrieffe v. Holder, 132 S. Ct. 1857 (2012) (granting
certiorari on question “[w]hether a conviction under a provision of state law that
encompasses but is not limited to the distribution of a small amount of marijuana without
remuneration constitutes an aggravated felony, notwithstanding that the record of conviction
does not establish that the alien was convicted of conduct that would constitute a federal law
felony”). We further note that while the BIA addressed only whether Pennant was both
removable and ineligible for cancellation of removal as an aggravated felon, the IJ also
concluded that (1) Pennant’s marijuana convictions were controlled substance offenses that
render him removable under 8 U.S.C. § 1227(a)(2)(B)(I), and (2) even if Pennant were
eligible for cancellation of removal, he would decline to grant that relief as a matter of
discretion, id. § 1229a(c)(4)(A)(ii). These conclusions were not addressed in the BIA
decision, and were not clearly challenged by Pennant in his pro se appeal to the BIA. We
express no view on the merits of these conclusions, but note that the BIA is not precluded on
remand from determining whether these conclusions independently support the IJ’s decision,
regardless of whether the conviction at issue qualifies as an aggravated felony. See generally
Alam v. Gonzales, 438 F.3d 184, 187 (2d Cir. 2006) (concluding that agency would have
reached same result even absent charged errors).


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