12-563-ag
Labrosciano v. Holder
                                                                                                                 BIA
                                                                                                            Straus, IJ
                                                                                                        A099 195 677


                                  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 25th
day of March, two thousand thirteen.

PRESENT:
            JOSÉ A. CABRANES,
            DEBRA ANN LIVINGSTON,
                         Circuit Judges,
            JESSE M. FURMAN,
                         District Judge.1
_____________________________________

CHARLA SOPHIA LABROSCIANO,

                    Petitioner,

                             v.                                                  No. 12-563-ag

ERIC H. HOLDER, JR., UNITED STATES ATTORNEY
GENERAL,

            Respondent.
_____________________________________

FOR PETITONER:                                                 Glenn T. Terk, Law Office of Glenn T. Terk,
                                                               Wethersfield, CT.

1 The Honorable Jesse M. Furman, of the United States District Court for the Southern District of New York, sitting by
designation
FOR RESPONDENT:                                         Stuart F. Delery, Acting Assistant Attorney
                                                        General; Keith I. McManus, Senior Litigation
                                                        Counsel; Matt A. Crapo, Trial Attorney,
                                                        Office of Immigration Litigation, United
                                                        States Department of Justice, Washington,
                                                        DC.

       UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the petition for review of the January 13, 2012 decision of
the Board of Immigration Appeals (“BIA”) is DENIED.

         Charla Sophia Labrosciano, a native and citizen of Jamaica, seeks review of a January 13,
2012 decision of the BIA affirming the October 4, 2010 decision of an Immigration Judge (“IJ”) that
denied her application for adjustment of status and for a waiver of inadmissibility, and ordering her
removed. In re Labrosciano, No. A099 195 677 (B.I.A. Jan. 13, 2012), aff’g No. A099 195 677 (Immig.
Ct. N.Y. City Oct. 4, 2010). We assume the parties’ familiarity with the facts and procedural history
in this case.

                                            DISCUSSION

         In the circumstances of this case, we have considered both the IJ’s and the BIA’s opinions
“for the sake of completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir. 2008) (quotation
marks omitted)). We review de novo the BIA’s legal conclusions and the application of law to
undisputed facts. Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2009). Although we generally lack
jurisdiction to review any judgment regarding eligibility for a waiver of inadmissibility under 8 U.S.C.
§ 1182(h), as well as a final order of removal issued against an alien who is removable by reason of
having committed a controlled substance offense, see 8 U.S.C. §§ 1252(a)(2)(B)(i) and 1252(a)(2)(C),
we retain jurisdiction to review colorable constitutional claims or questions of law, such as whether
Labrosciano’s criminal conviction renders her statutorily ineligible for a waiver of inadmissibility, see
id. § 1252(a)(2)(D); Sepulveda v. Gonzalez, 407 F.3d 59, 62-63 (2d Cir. 2005).

                                          A. Inadmissibility

       Labrosciano concedes that she was removable because she overstayed her visa, and thus,
sought an adjustment of status and a waiver of inadmissibility. In the circumstances, it is her burden
to show that she is eligible for the relief she seeks. 8 U.S.C. § 1229a(c)(4).

        Title 8 U.S.C. § 1182(a)(2)(A)(i)(II) provides that “any alien convicted of, or who admits
having committed, or who admits committing acts which constitute the essential elements of . . . a
violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States,
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or a foreign country relating to a controlled substance (as defined in section 802 of title 21) . . . is
inadmissible.” The agency concluded that Labrosciano’s conviction for selling marijuana under
Conn. Gen. Stat. § 21a-277(b) renders her inadmissible because it was a crime “relat[ing] to a
controlled substance.” Joint App’x 4. Labrosciano does not contest the agency’s conclusion on
inadmissibility; instead, she asserts only that the agency erred in finding that she was ineligible for a
waiver of inadmissibility pursuant to 8 U.S.C. § 1182(h), which (for the purpose of this appeal)
allows the Attorney General, in his discretion, to waive inadmissibility provided that (1) the
inadmissible offense “relates to a single offense of simple possession of 30 grams or less of
marijuana” and (2) other circumstantial factors are met.

                                     B. Waiver of Inadmissibility

        The agency determined that Labrosciano was not eligible for a waiver of inadmissibility
because it found that her offense did not relate to the simple possession of marijuana. See Joint
App’x 3-4. Labrosciano asserts that this conclusion was erroneous for two reasons. First, she
argues that because her plea was an Alford plea, see North Carolina v. Alford, 400 U.S. 25, 37 (1970)
(allowing an individual to plead guilty to an offense without “admit[ing] h[er] participat[ing] in the
acts constituting the crime”), it cannot be deemed an admission to any element of the crime or
underlying circumstances. Second, she argues that the statutory phrase “relates to” should be
construed broadly, and asserts that “[a]lthough [her] conviction was for sale of marijuana, a
circumstance[-]specific inquiry requires a finding of eligibility for a [§ 1182(h)] waiver.” Petitioner’s
Br. 5. Both arguments are without merit.

        Labrosciano’s argument related to her Alford plea is easily rejected. We specifically have held
that a conviction for immigration purposes includes an Alford plea. Abimbola v. Ashcroft, 378 F.3d
173, 181 (2d Cir. 2004). Moreover, regardless of her Alford plea, Labrosciano admitted to
purchasing marijuana for two men at a bar. Joint App’x 90-93; see also Mizrahi v. Gonzales, 492 F.3d
156, 159 (2d Cir. 2007) (noting that for the purposes of 8 U.S.C. § 1182(a)(2)(A)(i)(II), a violation
“need not be reflected in an actual criminal conviction; it can be evidenced by an alien’s admission
to a violation of law relating to a controlled substance”).

         Labrosciano’s second argument relies on Matter of Espinoza, 25 I. & N. Dec. 118 (B.I.A.
2009), a case in which the BIA explained that by using the term “relates to” in 8 U.S.C. § 1182(h),
Congress intended the waiver provision to extend beyond convictions for simple possession, and
“envisioned something broader, specifically, a factual inquiry into whether an alien’s criminal
conduct bore such a close relationship to the simple possession of a minimal quantity of marijuana
that it should be treated with the same degree of forbearance under the immigration laws as the
simple possession offense itself.” Id. at 124-25. Specifically, in Matter of Espinoza, the BIA
determined that “when a person possesses drug paraphernalia for the sole purpose of introducing 30
grams or less of marijuana into his body, his conduct ‘relates to’ the offense described in section
                                                   3
[1182(h)].” Id. at 125. In reaching that conclusion, however, the BIA cautioned that “[a]n offense
does not ‘relate[ ] to a single offense of simple possession of 30 grams or less of marijuana’ if it
contains elements that make it substantially more serious than ‘simple possession.’” Id. The BIA
also stated that “[i]f the fact of conviction is sufficient to show that an alien committed actions in
addition to (or more culpable than) a single offense of simple possession of a small amount of
marijuana, then the inquiry is at an end, and section [1182(h)] relief is unavailable.” Id.

         The language in Matter of Espinoza does not aid Labrosciano because her conviction was not
for the simple possession of marijuana. Indeed, she was convicted under a statute that only
punishes conduct that includes a more culpable “intent to transfer” element. See Conn. Gen. Stat.
§ 21a-277(b) (“[a]ny person who manufactures, distributes, sells, prescribes, dispenses, compounds,
transports with intent to sell or dispense, possesses with intent to sell or dispense, offers, gives or
administers to another person any controlled substance, except a narcotic substance, or a
hallucinogenic substance other than marijuana . . . .”); see also Garcia v. Holder, 638 F.3d 511, 517 (6th
Cir. 2011) (holding that an alien was ineligible for a waiver of inadmissibility under 8 U.S.C.
§ 1182(h) because he pleaded guilty to attempted possession of marijuana with the intent to deliver,
which is “something more than simple possession”). In sum, Labrosciano pleaded guilty to an
offense that involved the sale of, rather than mere possession of, marijuana; she also admitted to
such conduct before the IJ. In the circumstances, the agency did not err in finding that she was
ineligible for a waiver of inadmissibility under § 1182(h).

                                            CONCLUSION

        For the foregoing reasons, the petition for review is DENIED. As we have completed our
review, any stay of removal that the Court previously granted in this petition is VACATED, and any
pending motion for a stay of removal in this petition is DISMISSED as moot.

                                                         FOR THE COURT:
                                                         Catherine O’Hagan Wolfe, Clerk




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