Duran v. Holder

530 F. App'x 69

• Court: Court of Appeals for the Second Circuit
• Decided: July 23, 2013
• Docket: 12-825
• Status: Unpublished

Opinion

SUMMARY ORDER

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, 127 S.Ct. 625, 166 L.Ed.2d 462 (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 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.