15-1776-ag
Hidalgo v. Lynch


                          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 18th day of November, two thousand sixteen.

PRESENT: PIERRE N. LEVAL,
                 ROBERT D. SACK,
                 REENA RAGGI,
                                 Circuit Judges.
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SILVIO HIDALGO, AKA Silvio Cacereshidalgo, AKA
Kaki Hidalgo, AKA Sylvio Hialgo, AKA Sylvio Hidigo,
AKA Luis Ramon,
                                 Petitioner,

                        v.                                                 No. 15-1776-ag

LORETTA E. LYNCH, UNITED STATES ATTORNEY
GENERAL,
                                 Respondent.
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APPEARING FOR PETITIONER:                         PETER L. MARKOWITZ, Esq. (Andrea Saenz,
                                                  Esq.; Jaimie Lerner, Danelly Bello, Legal
                                                  Interns, on the brief), Immigration Justice
                                                  Clinic, Benjamin N. Cardozo School of Law,
                                                  New York, New York.

APPEARING FOR RESPONDENT:                        JANE T. SCHAFFNER, Trial Attorney
                                                 (Benjamin C. Mizer, Principal Deputy Assistant
                                                 Attorney General; Holly M. Smith, Senior

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                                         Litigation Counsel; Rachel L. Browning, Trial
                                         Attorney, on the brief), Office of Immigration
                                         Litigation, Civil Division, 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 DISMISSED in part and DENIED in part.

      Petitioner Silvio Hidalgo is a native and citizen of the Dominican Republic who

was admitted to the United States in 1994 as a lawful permanent resident. He here

challenges a decision of the BIA affirming a removal order of an immigration judge

(“IJ”), which denied Hidalgo’s application for asylum, withholding of removal, and relief

under the Convention Against Torture (“CAT”). In re Hidalgo, No. A044 877 766 (BIA

May 13, 2015), aff’g No. 044-877-766 (Immig. Ct. New York Dec. 30, 2014). Under

the circumstances of this case, we review both the BIA’s and the IJ’s decisions. See

Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir. 2008). We lack jurisdiction to review

the final order of removal of an alien such as Hidalgo who was found removable for

having committed an aggravated felony offense, see 8 U.S.C. § 1252(a)(2)(C), unless the

petition raises constitutional claims or questions of law, which we review de novo, see id.

§ 1252(a)(2)(D); Pierre v. Holder, 588 F.3d 767, 772 (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 deny Hidalgo’s petition for review of the

agency’s asylum and withholding rulings and deny in part and dismiss in part the petition

for review of the agency’s CAT ruling.


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1.     Aggravated Felony Determination

       Hidalgo argues that the agency erred in concluding that his New York State

conviction for attempted sale of a controlled substance in the third degree, see N.Y. Penal

Law §§ 110.00, 220.00, 220.39, rendered him ineligible for asylum and withholding of

removal. On de novo review of this question of law, see James v. Mukasey, 522 F.3d

250, 254 (2d Cir. 2008), we reject Hidalgo’s challenge as without merit.

       An alien who has been convicted of a particularly serious crime is statutorily

ineligible for asylum or withholding of removal. See 8 U.S.C. §§ 1158(b)(2)(A)(ii),

1231(b)(3)(B)(ii). An aggravated felony is per se particularly serious for purposes of

asylum, see id. § 1158(b)(2)(B)(i), and, when the aggravated felony involves drug

trafficking, it is presumptively particularly serious for purposes of withholding, see In re

Y-L-, 23 I. & N. Dec. 270, 274 (A.G. 2002).             This court has already identified

substantive violations of N.Y. Penal Law § 220.39 as aggravated felonies. See Pascual

v. Holder, 707 F.3d 403, 405 (2d Cir. 2013) (“Pascual I”), aff’d on reh’g, 723 F.3d 156

(2d Cir. 2013) (“Pascual II”). Further, federal immigration law states that an attempt to

commit an aggravated felony is itself an aggravated felony.                 See 8 U.S.C.

§ 1101(a)(43)(U).    This law, the applicability of which Hidalgo does not dispute,

supports the conclusion that he has been convicted of an aggravated drug trafficking

felony, which renders him ineligible for asylum and withholding of removal.

       In urging otherwise, Hidalgo submits that an attempt to violate N.Y. Penal Law

§ 220.39 cannot categorically qualify as an aggravated felony because the substantive

crime does not require an actual sale of drugs; an “offer . . . to sell” can suffice. Pascual

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I, 707 F.3d at 405. Equating “offer to sell” with attempt, Hidalgo argues that an attempt

to attempt a drug sale contemplates an impossible mens rea—intending to intend a

crime—which is at odds with that categorically required for an attempt to qualify as an

aggravated felony under 8 U.S.C. § 1101(a)(43)(U). See generally Ming Lam Sui v.

INS, 250 F.3d 105, 114–15 (2d Cir. 2001) (acknowledging that BIA interpreted

§ 1101(a)(43)(U) to reference “generic definition of attempt” characterized by “intent

plus a substantial step”).

       We find the argument unpersuasive. The categorical approach asks courts to

determine first “the minimum conduct criminalized by the state statute” and then

“whether even those acts are encompassed by the generic federal offense.” Moncrieffe

v. Holder, 133 S. Ct. 1678, 1684 (2013). The minimum conduct necessary to violate

N.Y. Penal Law §§ 110.00 and 220.39 is a question of New York law, not federal law.

Taken together, these two New York statutes stand for the proposition that a person is

guilty of an attempt to sell or offer to sell a controlled substance in the third degree when

he or she intends unlawfully and knowingly to sell or offer to sell a narcotic drug, and

engages in conduct to effect that sale or offer. The crime of attempting to offer is not a

logical impossibility. For example, one who has prepared a written offer of sale and

attempts to deliver it to the intended offeree has attempted to make an offer of sale, even

if the offer never reaches the intended recipient. Thus, there is no justification for

Hidalgo’s argument that a charge of attempt to offer to sell is the equivalent of a charge

of attempt to attempt to sell.



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       Indeed, as Hidalgo acknowledges, New York adheres to the general rule refusing

to recognize an attempt to commit a crime that is itself an attempt. See Karen Morris &

Nicole Black, Criminal Law in New York § 3:13 (4th ed. 2014) (“It is impossible to

attempt an inchoate crime, that is, a crime which includes, by definition, an attempt.”);

Black’s Law Dictionary 146 (9th ed. 2009) (observing, in defining “attempt,” that

“[a]ttempt is an inchoate offense distinct from the intended crime”). We thus have no

reason to conclude that a conviction for attempt to violate N.Y. Penal Law § 220.39 can

rest on an attempt to attempt a drug sale. The Supreme Court has specifically cautioned

that application of the categorical approach “is not an invitation to apply ‘legal

imagination’ to the state offense; there must be ‘a realistic probability, not a theoretical

possibility, that the State would apply its statute to conduct that falls outside the generic

definition of a crime.’” Moncrieffe v. Holder, 133 S. Ct. at 1684–85 (quoting Gonzales

v. Duenas Alvarez, 549 U.S. 183, 193 (2007)).

       Hidalgo having failed to make such a showing, his effort to remove his conviction

from the categorical sphere of aggravated drug trafficking felonies by hypothesizing a

legally impossible crime necessarily fails.

2.     Due Process Claim

       Hidalgo argues that the IJ’s denial of his request to have relatives in the

Dominican Republic testify telephonically at his asylum hearing violated due process.

We construe this—as the BIA did—as a constitutional claim over which we have

jurisdiction. 8 U.S.C. § 1252(a)(2)(D). To state a due process claim, Hidalgo must

show that he (1) was denied a “full and fair opportunity” to present his claims or was

                                              5
otherwise deprived of “fundamental fairness,” Burger v. Gonzales, 498 F.3d 131, 134 (2d

Cir. 2007) (internal quotation marks omitted); and (2) experienced “cognizable

prejudice,” Garcia-Villeda v. Mukasey, 531 F.3d 141, 149 (2d Cir. 2008) (internal

quotation marks omitted). We need not consider the first element because Hidalgo’s

argument plainly fails on the second.

      As the BIA explained, Hidalgo’s request to present telephonic testimony was

denied two months prior to the merits hearing on his petition. Hidalgo thus was not

prejudiced by the denial because he had ample opportunity to secure written affidavits

from his relatives in the Dominican Republic—of which he was manifestly capable, as he

presented an affidavit from one of his daughters—or at least to identify for the IJ the

information his relatives would provide. Moreover, Hidalgo himself was able to testify

to threats to his family in the Dominican Republic, and the IJ found him credible. The

IJ further found, however, that, despite threats, several family members continued to

reside in the same city where other members had been killed and had not been harmed.

The IJ also found no evidence that Hidalgo was personally at risk of harm in the

Dominican Republic. 1    Hidalgo fails to show how the telephonic testimony of his



1
  At oral argument, Hidalgo’s counsel asserted that a letter submitted by his daughter
provided such evidence. His failure to make this argument in his briefs on appeal would
normally waive the point. See Bishop v. Wells Fargo & Co., 823 F.3d 35, 50 (2d Cir.
2016). Even absent waiver, we would not identify error because the daughter’s letter
does not establish the daughter’s competency to testify to that matter. Moreover, the
agency denied Hidalgo’s CAT application for multiple reasons, including the continued
residence of several family members in the dangerous area without harm and Hidalgo’s
failure to show that he could not do likewise or reside safely elsewhere in the Dominican
Republic. The daughter’s letter is not to the contrary.

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relatives would have altered these findings. Thus, his due process claim fails because he

was not prejudiced by the challenged denial of telephonic testimony.

3.    Expert Report

      Hidalgo also faults the IJ for failing to consider an expert report—which was

admitted into evidence—regarding the likelihood of Hidalgo’s facing torture if deported.

We disagree. That the IJ did not specifically reference the expert report does not mean

that he did not consider it. See Zhi Yung Gao v. Mukasey, 508 F.3d 86, 87 (2d Cir.

2007) (explaining that agency need not “expressly parse or refute on the record each

individual argument or piece of evidence offered by the petitioner” (internal quotation

marks omitted)). “Indeed, we presume that [the agency] has taken into account all of

the evidence before [it], unless the record compellingly suggests otherwise.” Xiao Ji

Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 336 n.17 (2d Cir. 2006). Here, nothing in

the record compels the conclusion that the agency did not consider the expert report.

And to the extent Hidalgo argues that it should have placed greater weight on the

substance of the expert report, that argument “raises no question of law and is

accordingly not within this Court’s jurisdiction.” Boluk v. Holder, 642 F.3d 297, 304

(2d Cir. 2011) (citing 8 U.S.C. § 1252(a)(2)).       In any event, the BIA expressly

considered Hidalgo’s expert evidence and found that it was not material. We agree with

that conclusion.

4.    Conclusion

      We have considered Hidalgo’s other arguments and conclude that they are without

merit. Accordingly, we DENY the petition for review of the agency’s asylum and

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withholding rulings, and his petition for review of the agency’s CAT ruling is DENIED

in part and DISMISSED in part.

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




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