Austin v. Sessions
700 F. App'x 34
| 2d Cir. | 2017Background
- Petitioner Marsha Evangeline Austin was ordered removed after a 1995 New York conviction under NYPL §§ 110.00 and 220.39 for attempted third-degree criminal sale of a controlled substance.
- The IJ found Austin removable and ineligible for cancellation of removal; the BIA affirmed the IJ’s decision (except it did not reach the IJ’s discretionary denial of cancellation).
- The central legal question is whether Austin’s attempted sale conviction qualifies as an "aggravated felony" (drug trafficking) under the INA, which would bar cancellation of removal.
- The court applies the categorical approach to compare the state offense to the federal definition of an aggravated felony involving controlled substances.
- Austin argued (1) that her conviction as an attempt falls outside prior precedent treating § 220.39 as an aggravated felony, and (2) that combining NYPL §§ 110.00 and 220.39 could create an unlawful “attempt to attempt” (double inchoate) offense outside the federal definition.
- The Second Circuit concluded Austin’s conviction is categorically an aggravated felony: attempts under NY law fit within federal attempt law, and there is no realistic probability New York would convict for an impermissible “attempt to attempt.”
Issues
| Issue | Austin's Argument | Sessions' Argument | Held |
|---|---|---|---|
| Whether a conviction under NYPL §§ 110.00 and 220.39 (attempted sale) is an aggravated felony drug-trafficking offense | Austin: Attempt conviction falls outside Pascual holding; not an aggravated felony | Govt: Attempt to sell is an aggravated felony; INA treats attempt to commit an aggravated felony as an aggravated felony | Held: Conviction is categorically an aggravated felony; attempt covered by INA |
| Whether NYPL §§ 110.00 + 220.39 could criminalize an "attempt to attempt" (double inchoate) and thus fall outside the federal definition | Austin: Combined statutes could permit conviction for an "attempt to attempt," which should not qualify as an aggravated felony | Govt: New York law does not realistically prosecute ‘‘attempt to attempt’’; prior precedent controls | Held: No realistic probability of prosecutions for "attempt to attempt" in NY; argument speculative and rejected |
| Whether the NY attempt provision is broader than federal attempt (potential overbreadth) | Austin: NY attempt + §220.39 may be broader than federal "substantial step" standard | Govt: NY attempt is at least as stringent; fits within federal attempt elements | Held: NY attempt is more stringent than federal substantial-step test; categorical fit established |
| Jurisdictional scope—whether the court can review aggravated-felony determination | Austin: Challenges the classification as a question of law | Sessions: Classification is reviewable as a question of law | Held: Court has jurisdiction to review questions of law and constitutional claims; considered the issue on the merits |
Key Cases Cited
- Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520 (2d Cir.) (procedural rule for reviewing IJ decisions as modified by the BIA)
- Vargas-Sarmiento v. U.S. Dep’t of Justice, 448 F.3d 159 (2d Cir.) (jurisdiction to review questions of law in removal orders)
- Pascual v. Holder, 707 F.3d 403 (2d Cir.) (New York § 220.39 is categorically an aggravated felony drug-trafficking crime)
- Pascual v. Holder, 723 F.3d 156 (2d Cir.) (rehearing adherence to earlier holding)
- Moncrieffe v. Holder, 133 S. Ct. 1678 (U.S.) (use categorical approach; assess realistic probability of state applying statute to conduct outside the generic federal definition)
- Flores v. Holder, 779 F.3d 159 (2d Cir.) (describing categorical approach in INA aggravated felony analysis)
- United States v. Martinez, 775 F.2d 31 (2d Cir.) (federal attempt requires intent and a substantial step)
- People v. Acosta, 80 N.Y.2d 665 (N.Y.) (New York’s attempt standard is stricter than the federal substantial-step test)
- People v. Denson, 26 N.Y.3d 179 (N.Y.) (describing conduct necessary for attempt under NY law)