Submitted: February 5, 2013
Manuel Pascual, a citizen of the Dominican Republic, seeks rehearing of our denial of his petition for review of a Board of Immigration Appeals order, affirming an immigration judge's finding that Pascual was ineligible for cancellation of removal from the United States by reason of his conviction for an aggravated felony. We held that a conviction under N.Y.P.L. § 220.39(1) constitutes, categorically, an aggravated felony conviction under the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B), and dismissed the petition accordingly. We grant the petition for panel rehearing and adhere to our conclusion.
BENJAMIN M. MOSS, United States Department of Justice Office of Immigration, Washington, DC, for Respondent.
THOMAS E. MOSELEY, Law Offices of Thomas E. Moseley, Newark, New Jersey, for Petitioner.
David Debold (William Han, on the brief), Gibson, Dunn & Crutcher LLP, Washington, D.C., Manuel D. Vargas (Isaac Wheeler, on the brief), Immigrant Defense Project, New York, New York, for amici curiae Immigrant Defense Project, The Bronx Defenders, The Brooklyn Defender Services, The Legal Aid Society, Neighborhood Defender Service Harlem, New York County Defender Services, and Queens Law Associates in support of Petitioner.
Before: JACOBS, Chief Judge, KEARSE and CARNEY, Circuit Judges.
Manuel Pascual, a citizen of the Dominican Republic, seeks rehearing of our denial of his petition for review of a Board of Immigration Appeals (the "Board") decision affirming an immigration judge's ("IJ") ruling that Pascual had been convicted of an aggravated felony, and was therefore ineligible for cancellation of removal. On February 19, 2013, we held that a conviction under New York Penal Law ("NYPL") § 220.39(1) constitutes, categorically, an aggravated felony conviction under the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101(a)(43)(B), and we dismissed the petition accordingly. See Pascual v. Holder, 707 F.3d 403 (2d Cir. 2013). Pascual filed this timely petition for rehearing, supported by several amici curiae. The petition for panel rehearing is granted to consider the issues raised by Pascual and amici. We nevertheless adhere to our affirmance of the Board's decision, and our dismissal of Pascual's petition for relief from removal.
We recount only the context that bears upon Pascual's petition for rehearing. Fuller background is set out in the prior opinion: Pascual, 707 F.3d at 404.
Pascual's removability depends on whether his 2008 state court conviction--for third-degree criminal sale of a controlled substance (cocaine) in violation of NYPL § 220.39(1)--constitutes an aggravated felony under the INA. An "aggravated felony" is defined to include "illicit trafficking in a controlled substance (as defined in section 802 of Title 21), including a drug trafficking crime (as defined in section 924(c) of Title 18)." 8 U.S.C. § 1101(a)(43)(B). A state offense is punishable as a felony under the Controlled Substances Act ("CSA"), 21 U.S.C. § 801, et seq., only if it "proscribes conduct punishable as a felony under that federal law." Lopez v. Gonzales, 549 U.S. 47, 60 (2006). A state drug offense ranks as an aggravated felony only if it "correspond[s] to an offense that carries a maximum term of imprisonment exceeding one year under the CSA." Martinez v. Mukasey, 551 F.3d 113, 117–18 (2d Cir. 2008). See Pascual, 707 F.3d at 405.
The IJ concluded that the New York conviction was an aggravated felony, the Board affirmed, and we agreed. The petition was therefore dismissed. See Pascual, 707 F.3d at 405. Pascual argued that a conviction under NYPL § 220.39 is not categorically an aggravated felony because it would encompass a mere "'offer to sell, '" and that such an offer would not violate the federal analog. Id. We ruled that the analogous federal statute, 21 U.S.C. § 841(a)(1), punishes the "'actual, constructive, or attempted transfer of a controlled substance, '" and that therefore, "even if Pascual did no more than offer or attempt to sell cocaine, the state offense would be conduct punishable as . . . an aggravated felony." Id.
The petition for rehearing argues that our holding conflicts with prior Second Circuit case law--in particular, United States v. Savage, 542 F.3d 959 (2d Cir. 2008). Savage appealed his sentence (for possession of ammunition by a convicted felon) on the ground that one of his prior felony convictions was erroneously counted as a "controlled substance offense" under U.S. Sentencing Guidelines (the "Guidelines") § 4B1.2(b). Agreeing, we vacated and remanded for re-sentencing. Id. at 967. Savage held that a prior Connecticut state court conviction for drug trafficking did not categorically qualify as a controlled substance offense under the Guidelines because the Connecticut statute criminalizes some conduct that falls outside the Guidelines' definition; in particular, the Connecticut "statute plainly criminalizes . . . a mere offer to sell a controlled substance[, ]" including fraudulent offers, "such as when one offers to sell the Brooklyn Bridge." Id. ...