     12-2798
     Pascual v. Holder

 1                        UNITED STATES COURT OF APPEALS
 2
 3                            FOR THE SECOND CIRCUIT
 4
 5                              August Term, 2012
 6
 7
 8   (Submitted: February 5, 2013          Decided: February 19, 2013)
 9
10                              Docket No. 12-2798
11
12   - - - - - - - - - - - - - - - - - - - -x
13
14   Manuel Pascual, AKA Scarface Gomez,
15
16                       Petitioner,
17
18               - v.-
19
20   Eric H. Holder, Jr., United States Attorney General,
21
22                 Respondent.
23   - - - - - - - - - - - - - - - - - - - -x

24         Before:           JACOBS, Chief Judge, KEARSE and CARNEY,
25                           Circuit Judges.
26
27         Petitioner, a citizen of the Dominican Republic, seeks

28   review of a Board of Immigration Appeals order, affirming an

29   immigration judge’s finding that Manuel Pascual had been

30   convicted of an aggravated felony, and was therefore

31   ineligible for cancellation of removal from the United

32   States.    For the following reasons, we conclude that

33   Pascual’s New York state conviction under NYPL § 220.39(1)

34   constitutes an aggravated felony, which deprives this Court

35   of jurisdiction to review the order of removal.
 1                                 THOMAS EDWARD MOSELEY,
 2                                 Law Offices of Thomas E. Moseley
 3                                 Newark, New Jersey, for
 4                                 Petitioner.
 5
 6                                 BENJAMIN MARK MOSS,
 7                                 United States Department of
 8                                 Justice, Office of Immigration
 9                                 Litigation, for Respondent.
10
11   PER CURIAM:
12
13            Manuel Pascual, a citizen of the Dominican

14   Republic, petitions for review of a Board of Immigration

15   Appeals (“BIA”) decision to affirm an immigration judge’s

16   (“IJ”) finding that Pascual had been convicted of an

17   aggravated felony, and was therefore ineligible for

18   cancellation of removal.   Pascual also seeks review of the

19   BIA’s denial of a continuance to seek post-conviction relief

20   and moves for a stay of removal pending appeal, leave to

21   proceed in forma pauperis and appointment of counsel.    The

22   Government moves to dismiss Pascual’s petition for review on

23   the ground that the BIA’s determination that Pascual had

24   been convicted of an aggravated felony deprives this Court

25   of jurisdiction to review the agency’s order of removal.       We

26   grant the Government’s motion and dismiss Pascual’s petition

27   because the BIA correctly determined that Pascual had been

28   convicted of an aggravated felony.    We also deny Pascual’s

29   additional motions as moot.
                                    2
1                              BACKGROUND

2        Pascual was admitted to the United States as a legal

3    permanent resident in 1993.   In 2003, Pascual was served

4    with a Notice to Appear charging him with removability under

5    the Immigration & Nationality Act (“INA”) § 237(a)(2)(B)(i),

6    8 U.S.C. § 1227(a)(2)(B)(i), by reason of a 2000 Connecticut

7    state conviction for cocaine possession.   Then in December

8    of 2011, he was served with an additional charging document

9    seeking his removal pursuant to INA § 237(a)(2)(A)(iii), 8

10   U.S.C. § 1227(a)(2)(A)(iii), by reason of an aggravated

11   felony, citing a 2008 New York state conviction for third-

12   degree criminal sale of a controlled substance, cocaine, in

13   violation of New York Penal Law (“NYPL”) § 220.39(1).     In

14   January of 2012, Pascual appeared by counsel before an IJ

15   and conceded removability based on the possession crime, but

16   challenged removability based on an aggravated felony

17   conviction.   In an oral decision, the IJ ordered Pascual

18   removed to the Dominican Republic, finding that the

19   Government established removability based on Pascual’s

20   Connecticut and New York convictions.   The IJ also found

21   that the New York conviction was an aggravated felony and as

22   such, Pascual was statutorily ineligible for cancellation of


                                   3
1    removal.     Pascual appealed this decision to the BIA, which

2    affirmed.     Pascual now seeks review in this Court.

3

4                                DISCUSSION

5        Although this Court lacks jurisdiction to review final

6    orders of removal against aliens convicted of an aggravated

7    felony, see 8 U.S.C. § 1252(a)(2)(C), we have jurisdiction

8    to review constitutional claims or questions of law,

9    including whether a specific conviction constitutes an

10   aggravated felony.     See 8 U.S.C. § 1252(a)(2)(D); Pierre v.

11   Holder, 588 F.3d 767, 772 (2d Cir. 2009).     We review

12   interpretations of law and the application of law to fact de

13   novo.    See Alsol v. Mukasey, 548 F.3d 207, 210 (2d Cir.

14   2008).     A determination that Pascual’s conviction under NYPL

15   § 220.39 constitutes an aggravated felony, however, results

16   in the mandatory dismissal of Pascual’s appeal.        See Higgins

17   v. Holder, 677 F.3d 97, 100 (2d Cir. 2012).

18       This Court has not previously decided whether a

19   conviction under NYPL § 220.39, a Class B felony,

20   constitutes an aggravated felony conviction.     See

21   Montesquieu v. Holder, 350 F. App’x 569, 571 (2d Cir. 2009).

22   Some district courts in this Circuit have ruled that it is.


                                     4
1    See Del Orbe v. Holder, 12 CIV. 1057 PAE, 2012 WL 3826182,

2    at *3-4 (S.D.N.Y. Aug. 27, 2012); United States v. Minotta-

3    Caravalle, 5:10-CR-14-01, 2010 WL 4975643, at *5 (D. Vt.

4    Nov. 30, 2010).   We agree.   Unpublished opinions in other

5    circuits are in accord.   See, e.g., Medina Lopez v. Attorney

6    Gen. of U.S., 425 F. App’x 146, 149 (3d Cir. 2011); Griffith

7    v. Attorney Gen. of U.S., 400 F. App’x 632, 635 (3d Cir.

8    2010); Clarke v. Holder, 386 F. App’x 501, 503 (5th Cir.

9    2010).

10       An “aggravated felony” is defined to include “illicit

11   trafficking in a controlled substance (as defined in section

12   802 of Title 21), including a drug trafficking crime (as

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

14   1101(a)(43)(B).   The Supreme Court has held that such a

15   state offense “constitutes a ‘felony punishable under the

16   Controlled Substances Act [“CSA” 21 U.S.C. § 801, et seq.]’

17   only if it proscribes conduct punishable as a felony under

18   that federal law.”   Lopez v. Gonzales, 549 U.S. 47, 60

19   (2006).   For a state drug offense to rank as an aggravated

20   felony, “it must correspond to an offense that carries a

21   maximum term of imprisonment exceeding one year under the




                                    5
1    CSA.”     Martinez v. Mukasey, 551 F.3d 113, 117–18 (2d Cir.

2    2008).

3        In deciding whether a state conviction corresponds to

4    an “aggravated felony,” we employ a “categorical approach”

5    under which “‘the singular circumstances of an individual

6    petitioner’s crimes should not be considered, and only the

7    minimum criminal conduct necessary to sustain a conviction

8    under a given statute is relevant.’”     Gertsenshteyn v. U.S.

9    Dep’t of Justice, 544 F.3d 137, 143 (2d Cir. 2008)

10   (quoting Dalton v. Ashcroft, 257 F.3d 200, 204 (2d Cir.

11   2001)).     The question, then, is whether the elements of NYPL

12   § 220.39 would be punishable as a felony under federal

13   criminal law.     See Lopez, 549 U.S. at 57.   The federal

14   statute analogous to NYPL § 220.39 is 21 U.S.C. § 841(a)(1),

15   which prohibits, inter alia, the distribution of, or

16   possession with intent to distribute a controlled substance,

17   an offense punishable by a term of imprisonment greater than

18   one year.

19       Pascual relies on an unpublished Fifth Circuit decision

20   to argue that a conviction under of NYPL § 220.39 is not

21   categorically an aggravated felony because statutes that

22   punish “offers to sell,” see NYPL § 220.00(1), are not drug



                                     6
1    trafficking crimes under the CSA.     Davila v. Holder, 381 F.

2    App’x 413, 416 (5th Cir. 2010).     This Court, however, has

3    held that “distribution,” within the meaning of 21 U.S.C. §

4    841(a)(1) does not require a “sale” to take place: “The word

5    ‘distribute’ means ‘to deliver,’ [21 U.S.C.] § 802(11); and

6    ‘deliver’ means ‘the actual, constructive, or attempted

7    transfer of a controlled substance,’ [21 U.S.C.] § 802(8).”

8    United States v. Wallace, 532 F.3d 126, 129 (2d Cir. 2008)

9    (emphasis added).   Therefore, even if Pascual did no more

10   than offer or attempt to sell cocaine, the state offense

11   would be conduct punishable as a federal felony, thus

12   rendering it an aggravated felony.

13       As a result of the BIA’s correct finding that Pascual

14   was convicted of an aggravated felony, this Court lacks

15   jurisdiction over his petition for review, and we must grant

16   the Government’s motion to dismiss.     Accordingly, we do not

17   consider Pascual’s additional claims, including the IJ’s

18   denial of a continuance.   Cf. Blake v. Gonzales, 481 F.3d

19   152, 162-63 (2d Cir. 2007) (declining to address challenges

20   to IJ’s denial of a continuance after concluding that the

21   Court lacked jurisdiction over petitioner’s petition for

22   review due to the BIA’s aggravated felony finding).



                                   7
1       For the foregoing reasons, the petition for review is

2   dismissed for lack of jurisdiction.




                                 8
