    11-5449
    Andrews v. Holder
                                                                                  BIA
                                                                            Abrams, IJ
                                                                          A036 706 672


                             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 26th
    day of August, two thousand thirteen.

    PRESENT:
              RALPH K. WINTER,
              PETER W. HALL,
                   Circuit Judges,
              WILLIAM K. SESSIONS III,*
                   District Judge.
    _____________________________________

    CHURCHILL LEONARD SPENCER ANDREWS,
    AKA CHURCHILL LENARD ANDREWS,
              Petitioner,

                        v.                           11-5449

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




                 *
               The Honorable William K. Sessions III, of the United
        States District Court for the District of Vermont, sitting by
        designation.
FOR PETITIONER:          DAVID J. DEBOLD (Jill M. Pfenning, on
                         the brief), Gibson, Dunn & Crutcher LLP,
                         Washington, D.C.

FOR RESPONDENT:          CLAIRE L. WORKMAN (Stuart F. Delery,
                         Acting Assistant Attorney General;
                         Blair T. O’Connor, Assistant
                         Director, on the brief), Office of
                         Immigration Litigation, 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 Churchill Leonard Spencer Andrews, a native

and citizen of Guyana, seeks review of an October 25, 2011,

order of the BIA, denying his motion to reopen his removal

proceedings and affirming the May 10, 2011, decision of

Immigration Judge (“IJ”) Steven R. Abrams, which denied his

application for asylum, withholding of removal, and relief

under the Convention Against Torture (“CAT”).     In re

Churchill Leonard Spencer Andrews, No. A036 706 672 (B.I.A.

Oct. 25, 2011), aff’g No. A036 706 672 (Immig. Ct. N.Y. City

May 10, 2011).    We assume the parties’ familiarity with the

underlying facts and procedural history in this case.




                               2
    Under the circumstances of this case, we have reviewed

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) (internal quotation marks omitted).    The applicable

standards of review are well established.     See 8 U.S.C. §

1252(b)(4)(B); see also Yanqin Weng v. Holder, 562 F.3d 510,

513 (2d Cir. 2009); Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.

2005).

    Title 8, Section 1252(a)(2)(C) of the United States

Code provides that no court shall have jurisdiction to

review the final order of removal of an alien who is

removable for having been convicted of an aggravated felony

or controlled substance offense.     See also Vargas-Sarmiento

v. U.S. Dep’t of Justice, 448 F.3d 159, 164 (2d Cir. 2006);

Durant v. INS, 393 F.3d 113, 115-16 (2d Cir. 2004).

Nevertheless, we retain jurisdiction to review

constitutional claims and questions of law, including

whether an underlying conviction constitutes an aggravated

felony.   See 8 U.S.C. § 1252(a)(2)(D); see also

Vargas-Sarmiento, 448 F.3d at 164.

    Following the conclusion of briefing in this case, a

panel of this Court held that a conviction for third-degree


                              3
criminal sale of cocaine under New York Penal Law (“NYPL”) §

220.39 is categorically a drug trafficking aggravated

felony.    See Pascual v. Holder, 707 F.3d 403, 405 (2d Cir.

2013).    Following oral argument in this case, the panel in

Pascual reconsidered its decision and adhered to its

conclusion that a violation of § 220.39 is categorically a

drug trafficking aggravated felony.    See Pascual v. Holder,

__ F.3d __, No. 12-2798 (2d Cir. July 9, 2013) (slip op.).

The petitioner in Pascual then sought en banc review, which

was denied.    Accordingly, we hold that, under Pascual,

Andrews’s conviction for fifth-degree criminal sale of

cocaine, in violation of NYPL § 220.31, is also

categorically a drug trafficking aggravated felony and, as

such, Andrews cannot raise a colorable constitutional claim

or question of law concerning the agency’s denial of asylum

and reopening, which were predicated on his corresponding

statutory ineligibility for asylum and cancellation of

removal, respectively.    See 8 U.S.C. § 1158(b)(2)(A)(ii),

(B)(i); 8 U.S.C. § 1229b(a)(3), (b)(1)(C).    Although the

agency based its denial of asylum and reopening on a finding

that Andrews’s conviction, though not categorically an

aggravated felony, was nevertheless an aggravated felony


                               4
under the modified categorical approach, we need not remand

to the agency for application of Pascual.   See Shunfu Li v.

Mukasey, 529 F.3d 141, 150 (2d Cir. 2008) (finding that

remand is futile where the Court can confidently “predict

that the agency would reach the same decision absent the

errors that were made” (internal quotation marks omitted)).

    Nor does Andrews’s contention that the agency summarily

found that he was statutorily ineligible for withholding of

removal raise a colorable constitutional claim or question

of law.   While a challenge to the agency’s determination

that an alien’s conviction constitutes a particularly

serious crime normally presents a question of law, Nethagani

v. Mukasey, 532 F.3d 150, 154-55 (2d Cir. 2008), “we lack

jurisdiction to review any legal argument that is so

insubstantial and frivolous as to be inadequate to invoke

federal-question jurisdiction,” Barco-Sandoval v. Gonzales,

516 F.3d 35, 40 (2d Cir. 2008).   In denying withholding of

removal, the BIA noted that Andrews’s drug trafficking

aggravated felony conviction was presumptively a

particularly serious crime and that Andrews had not

attempted to rebut the presumption.   See Matter of Y-L-,

A-G- & R-S-R-, 23 I. & N. Dec. 270, 276 (A.G. 2002)

(“Aggravated felonies involving unlawful trafficking in
                              5
controlled substances presumptively constitute ‘particularly

serious crimes’” and the burden is on applicant to

demonstrate eligibility for withholding of removal.),

overruled on other grounds by Khouzam v. Ashcroft, 361 F.3d

161, 171 (2d Cir. 2004); accord Miguel–Miguel v. Gonzales,

500 F.3d 941, 946-49 (9th Cir. 2007).   Andrews’s challenge

to this finding, as cursory and devoid of reasoning, is

frivolous and inadequate to invoke jurisdiction because his

former counsel conceded before the IJ that his conviction

was for a particularly serious crime, Andrews’s motion for

ineffective assistance filed before the BIA acknowledged

that the concession rendered him ineligible for withholding

of removal, and Andrews never attempted to rebut the

presumption at any stage in the proceedings.     See

Barco-Sandoval, 516 F.3d at 40.

    Lastly, assuming that we retain jurisdiction to

consider Andrews’s challenge to the agency’s denial of

deferral of removal under the CAT, he has failed to identify

reversible error in the agency’s decision.     Because torture

cognizable under the CAT must be “inflicted by or at the

instigation of or with the consent or acquiescence of a

public official or other person acting in an official

capacity,” 8 C.F.R. § 1208.18(a)(1), the agency reasonably
                             6
determined that Andrews was not eligible for CAT relief.

Andrews did not contest the IJ’s findings that his cousin

was not acting in his official capacity during their dispute

and that Andrews did not reach out to any governmental

organization to seek assistance with, or protection from his

cousin.   See Khouzam, 361 F.3d at 171 (holding that

cognizable acquiescence requires “that government officials

know of or remain willfully blind to an act and thereafter

breach their legal responsibility to prevent it”).

    For the foregoing reasons, the petition for review is

DISMISSED IN PART, as it relates to Andrews’s challenges to

the agency’s denial of asylum, withholding of removal, and

reopening of his removal proceedings and DENIED IN PART, as

it relates to Andrews’s challenge to the agency’s denial of

deferral of removal under the CAT.



                            FOR THE COURT:
                            Catherine O’Hagan Wolfe, Clerk




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