12-825
Duran v. Holder
                                                                                                BIA
                                                                                             Page, IJ
                                                                                        A045 865 565
                             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
23rd day of July, two thousand thirteen.

PRESENT:
            ROSEMARY S. POOLER,
            RICHARD C. WESLEY,
            CHRISTOPHER F. DRONEY,
                  Circuit Judges.
_____________________________________________________

ANLET JOSE PAULINO DURAN,
           Petitioner,

                  v.                                         12-825

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

For Petitioner:                       Andrew L. Friedman, New York, NY

For Respondent:                       C. Frederick Sheffield, Trial Attorney, Office of
                                      Immigration Litigation (Stuart F. Delery, Acting Assistant
                                      Attorney General; Erica B. Miles, Senior Litigation
                                      Counsel, on the brief), United States Department of
                                      Justice, Washington, DC

        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.
       Anlet Jose Paulino Duran, a native and citizen of the Dominican Republic, seeks review
of a February 8, 2012 order of the BIA reversing the August 18, 2011 decision of Immigration
Judge Alan Page and finding him removable and ineligible for cancellation of removal. We
assume the parties’ familiarity with the underlying facts and procedural history in this case.

        In order to qualify for cancellation of removal, in addition to having been a lawful
permanent resident for not less than five years, and having resided in the United States
continuously for seven years after having been admitted in any status, an applicant must not
have been convicted of an aggravated felony. 8 U.S.C. § 1229b(a). While there is no dispute
that Duran had the necessary residency qualifications, the BIA found that Duran’s conviction
for violation of New York Penal Law (“NYPL”) § 220.39 constituted an aggravated felony, and
thus he was statutorily ineligible for cancellation of removal. On appeal, Duran argues that the
BIA erred in making this finding.

        Under the circumstances of this case, we review only the BIA’s decision. See Chen v.
Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). “As a rule, federal courts lack jurisdiction to
review final agency orders of removal based on an alien’s conviction for certain crimes,
including aggravated felonies.” Ganzhi v. Holder, 624 F.3d 23, 28 (2d Cir. 2010) (internal
quotation marks omitted). “We retain jurisdiction, however, to review the legal question of
whether a conviction underlying an order of removal, or the denial of relief from an order of
removal, constitutes an aggravated felony.” Higgins v. Holder, 677 F.3d 97, 100 (2d Cir. 2012)
(per curiam).

          An aggravated felony is defined to include “illicit trafficking in a controlled substance
. . . including a drug trafficking crime (as defined in [the federal Controlled Substances Act]).”
8 U.S.C. § 1101(a)(43)(B). A “state offense constitutes a ‘felony punishable under the
Controlled Substances Act’ only if it proscribes conduct punishable as a felony under that
federal law.” Lopez v. Gonzales, 549 U.S. 47, 60 (2006). In deciding whether a state offense
constitutes an aggravated felony, “we have adopted a categorical approach that looks to the
elements of the offense as defined by statute, rather than to the particular facts of the alien’s
criminal activity.” Lanferman v. BIA, 576 F.3d 84, 88 (2d Cir. 2009) (internal quotation marks
omitted). “In some instances, however, a statute may be subject to what we have termed the
‘modified categorical approach,’ which allows for limited review of the record.” Id. “The
modified categorical approach calls for a two-step inquiry: first, we determine if the statute is
divisible, such that some categories of proscribed conduct render an alien removable and some
do not; second, we consult the record of conviction to ascertain the category of conduct of
which the alien was convicted.” Id. at 88-89 (internal quotation marks omitted).

        Duran argues that under the modified categorical approach, the record of conviction did
not sufficiently show that the conduct for which he was convicted constitutes an aggravated
felony. His argument, however, is foreclosed by our decision in Pascual v. Holder, where we
held that a conviction for violation of NYPL § 220.39 categorically constitutes an aggravated
felony. 707 F.3d 403, 405 (2d Cir. 2013), aff’d on reh’g 2013 WL 3388382 (July 9, 2013). As


                                                 2
a result of Pascual, there is no question that Duran’s conviction constitutes an aggravated
felony, and thus he is statutorily ineligible for cancellation of removal.

       We have considered all of Duran’s remaining arguments and find them to be without merit.
For the foregoing reasons, the petition for review is DISMISSED. As we have completed our
review, the stay of removal that the Court previously granted in this petition is VACATED.

                                             FOR THE COURT:
                                             Catherine O’Hagan Wolfe, Clerk




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