Manuel De Jesus Perez Henriquez v. Sessions

890 F.3d 70
CourtCourt of Appeals for the Second Circuit
DecidedMay 8, 2018
DocketNo. 15-3285-ag; August Term 2017
StatusPublished
Cited by4 cases

This text of 890 F.3d 70 (Manuel De Jesus Perez Henriquez v. Sessions) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Manuel De Jesus Perez Henriquez v. Sessions, 890 F.3d 70 (2d Cir. 2018).

Opinion

José A. Cabranes, Circuit Judge:

Petitioner Manuel De Jesus Perez Henriquez ("petitioner" or "Perez") seeks review of an October 7, 2015, decision of the BIA affirming an April 20, 2015, decision of an Immigration Judge ("IJ") ordering his removal. In re Manuel De Jesus Perez Henriquez, No. A036 542 739 (B.I.A. Oct. 7, 2015), aff'g No. A036 542 739 (Immig. Ct. N.Y. City Apr. 20, 2015).

Perez was found removable based on his conviction for possession of a controlled substance in the fifth degree in violation of New York Penal Law ("N.Y.P.L.") § 220.06. He was found ineligible for cancellation of removal based on his conviction for bail jumping, in violation of N.Y.P.L. § 215.57, which the BIA concluded was an aggravated felony.

Perez challenges both of these determinations on appeal, arguing that his conviction for possession of a controlled substance in the fifth degree did not render him removable, and that his conviction for bail jumping did not constitute an aggravated felony rendering him ineligible for cancellation of removal. Although we have not previously opined on the bail jumping issue, we reject both arguments.

Accordingly, the petition for review is DENIED .

DISCUSSION

I.

Perez first contends that the BIA erred in finding that his conviction for possession of a controlled substance in the fifth degree, in violation of N.Y.P.L. § 220.06, was a controlled substance offense that rendered him removable. Because *72petitioner raises a question of law, we have jurisdiction to consider this issue. Vargas-Sarmiento v. U.S. Dep't of Justice , 448 F.3d 159, 164 (2d Cir. 2006).

Perez was convicted under a statute that is not categorically a controlled substance offense, because the New York State controlled substance schedule sweeps more broadly than the federal controlled substance schedule. See Harbin v. Sessions , 860 F.3d 58, 63 (2d Cir. 2017) (explaining that New York's controlled substance schedule is broader than the federal schedule). However, N.Y.P.L. § 220.06 is a divisible statute, because each distinct subsection of the statute contains separate elements that must be proven beyond a reasonable doubt in order to sustain a conviction under that subsection. See Mathis v. United States , --- U.S. ----, 136 S.Ct. 2243, 2249, 195 L.Ed.2d 604 (2016) (explaining that a statute is divisible when it lists elements in the alternative, thereby defining multiple crimes). The different subsections of § 220.06 are thus not interchangeable, as petitioner suggests. Because the statute is divisible, the agency properly consulted Shepard documents in order to ascertain the elements of petitioner's underlying conviction. See Shepard v. United States , 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005).

Petitioner further contends that even if N.Y.P.L. § 220.06 is divisible, the government did not prove that he was convicted of possessing a substance that is contained within the federal controlled substance schedule. To establish that Perez's fifth-degree possession of a controlled substance conviction involved a federally-controlled substance, the government submitted three Shepard documents to the IJ: (1) a superior court information, a (2) waiver of indictment, and (3) a certificate of disposition. Appeal Record ("A.R.") 541-43. The government offered these documents to prove that petitioner pleaded guilty to violating subsection (5) of N.Y.P.L § 220.06, which criminalizes the possession of cocaine that weighs 500 milligrams or more. N.Y.P.L. § 220.06(5).

The information makes clear that Perez was charged with violating N.Y.P.L § 220.06 subsection (5), and it also specifically mentions cocaine. A.R. 542. Perez's waiver of indictment, however, states only that he was charged with criminal possession of a controlled substance in the fifth degree, without specifying the subsection. A.R. 543. And the final certificate of disposition states only that Perez pleaded guilty to the crime of "criminal possession of a controlled substance 5th degree PL 220.06." A.R. 541.

The government contends that the information, petitioner's waiver of indictment, and the record of conviction together establish that petitioner pleaded guilty to subsection (5). Although the government could have provided a more complete record of conviction-a sentencing transcript, or a plea colloquy, for example-we rely in part on the fact that petitioner does not argue in his briefing that he could have pleaded guilty to a different subsection of § 220.06 than that listed on the information. See Pet. Br. P. 37, n.8 ("The BIA also rejected Perez's argument "that, under New York Criminal Procedure Law ... § 220.20(1)(i), a defendant could plead to a different subsection of NYPL § 220.06 than that identified in the information and that such a plea would constitute a plea to a 'lesser included offense.' " BA4. We do not make this argument on appeal."). Petitioner thus appears to concede that he could not have pleaded guilty to a different subsection than that charged in the information, while simultaneously arguing that the government has not offered sufficient proof that he pleaded guilty to that subsection. We are not persuaded. We thus hold that the BIA did not err in finding that *73petitioner pleaded guilty to possessing cocaine.

Cocaine is a controlled substance under federal law. 8 U.S.C. § 1227(a)(2)(B)(i) ; N.Y.P.L. § 220.06(5) (2001) ; 21 U.S.C. § 812, at Schedule II(a)(4) (2001) (listing cocaine). The BIA thus correctly determined that Perez was removable as charged because he had been convicted of a controlled substance offense.

II.

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890 F.3d 70, Counsel Stack Legal Research, https://law.counselstack.com/opinion/manuel-de-jesus-perez-henriquez-v-sessions-ca2-2018.