      14-80
      Fleury v. Lynch
                                                                                                     BIA
                                                                                             A025 454 603
                                            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 1st day of July, two thousand fifteen.
 5 
 6    PRESENT:
 7             REENA RAGGI,
 8             DEBRA ANN LIVINGSTON,
 9             DENNY CHIN,
10                  Circuit Judges.
11    _____________________________________
12 
13    RINALDO SERGE FLEURY,
14             Petitioner,
15 
16                                 v.                                                14-80
17                                                                                   NAC
18    LORETTA E. LYNCH,* UNITED STATES
19    ATTORNEY GENERAL,
20             Respondent.
21    _____________________________________
22 



                                                                  
      *
            Pursuant
                  to Federal Rule of Appellate Procedure 43(c)(2),
      Attorney General Loretta E. Lynch is automatically substituted
      for former Attorney General Eric H. Holder, Jr.
 1    FOR PETITIONER:                Elyssa N. Williams, Formica
 2                                   Williams P.C., New Haven,
 3                                   Connecticut.
 4 
 5    FOR RESPONDENT:                Joyce R. Branda, Acting Assistant
 6                                   Attorney General; Blair T.
 7                                   O’Connor, Assistant Director;
 8                                   Juria L. Jones, Trial Attorney,
 9                                   Office of Immigration Litigation,
10                                   Washington, D.C.
11 
12        UPON DUE CONSIDERATION of this petition for review of a

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

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

15    is DENIED.

16        Petitioner Rinaldo Serge Fleury, a native and citizen

17    of Haiti, seeks review of a December 19, 2013, decision of

18    the BIA denying his motion to reconsider.              In re Rinaldo

19    Serge Fleury, No. A025 454 603 (B.I.A. Dec. 19, 2013).               We

20    assume the parties’ familiarity with the underlying facts

21    and procedural history in this case.

22        Our     review   is   limited   to   constitutional   claims    and

23    questions    of   law     challenging    the   BIA’s   December    2013

24    decision denying Fleury’s motion to reconsider.           8 U.S.C.

25    § 1252(a)(2)(C), (D); cf. Ke Zhen Zhao v. U.S. Dep’t of

                                          2
 1    Justice, 265 F.3d 83, 89-90 (2d Cir. 2001).                         Fleury raises

 2    two questions of law.              First, Fleury argues that the BIA

 3    erred as a matter of law when it held that any lawful

 4    permanent      resident       (“LPR”)         convicted     of    an   aggravated

 5    felony after obtaining that status is barred from seeking a

 6    waiver of inadmissibility under Immigration and Nationality

 7    Act   (“INA”)    §     212(h),     8     U.S.C.    §     1182(h).      Fleury   is

 8    correct.       Our recent opinion in Husic v. Holder, 776 F.3d

 9    59 (2d Cir. 2015), holds that an alien with an aggravated

10    felony     conviction        is    eligible       to      seek    a    waiver   of

11    inadmissibility        under       INA    §     212(h)     if    the   alien    was

12    admitted to the United States in some non-LPR status and

13    later adjusted to LPR status before being convicted of an

14    aggravated felony.           Husic, 776 F.3d at 66.

15          However, Husic is irrelevant because Fleury’s second

16    argument fails.          Fleury’s controlled substance conviction

17    may not be waived under § 212(h).                      One of the grounds of

18    inadmissibility applicable to Fleury—an offense related to

19    a controlled substance, 8 U.S.C. § 1182(a)(2)(A)(i)(II)—may

20    be    waived    only    if    it    is    “a    single     offense     of   simple
                                                3
 1    possession of 30 grams or less of marijuana.”                      8 U.S.C.

 2    § 1182(h).        However, in January 2009 Fleury was convicted

 3    of   possession         of   narcotics          under     Connecticut       General

 4    Statutes     §    21a-279(a),         in       addition    to     possession      of

 5    marijuana.       Fleury’s conviction for possession of narcotics

 6    does not fall under the exception for possession of 30

 7    grams or less of marijuana.

 8         Fleury, relying on Moncrieffe v. Holder, 133 S. Ct.

 9    1678 (2013), argues that his narcotics conviction is not

10    categorically       a    controlled        substance       offense.         As    the

11    Government       argues,     Fleury    did      not     exhaust    this    argument

12    because he failed to raise it before the BIA in his motion

13    to reconsider, and the denial of reconsideration is the

14    only ruling properly before this Court.                     Ke Zhen Zhao, 265

15    F.3d at 89-90.          Accordingly, we decline to reach the issue,

16    as exhaustion is a prerequisite to our review.                            Lin Zhong

17    v. U.S. Dep’t of Justice, 480 F.3d 104, 123 (2d Cir. 2006).

18         For the foregoing reasons, the petition for review is

19    DENIED.      As    we    have   completed         our    review,    any    stay   of

20    removal that the Court previously granted in this petition
                                                 4
1    is VACATED, and any pending motion for a stay of removal in

2    this petition is DISMISSED as moot.          Any pending request

3    for oral argument in this petition is DENIED in accordance

4    with   Federal   Rule   of   Appellate   Procedure   34(a)(2),   and

5    Second Circuit Local Rule 34.1(b).

6                                    FOR THE COURT:
7                                    Catherine O=Hagan Wolfe, Clerk




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