Harbin v. Sessions
2017 U.S. App. LEXIS 10946
| 2d Cir. | 2017Background
- Kennard Harbin, a Grenadian native and U.S. lawful permanent resident since 1978, has multiple criminal convictions, including a 1991 NYPL § 220.31 conviction for sale of a controlled substance (cocaine).
- In 2012–2013 removal proceedings Harbin applied for cancellation of removal, asylum, withholding of removal, and CAT relief.
- The IJ (Oct. 31, 2013) and the BIA (Apr. 24, 2014) concluded Harbin’s § 220.31 conviction was a drug‑trafficking aggravated felony, rendering him ineligible for asylum and cancellation; the IJ also denied withholding and CAT relief on factual grounds.
- Harbin claimed membership in the particular social group “mentally‑ill criminal deportees to Grenada with no support system,” and submitted medical and country‑conditions evidence about Grenada’s mental‑health care.
- The Second Circuit granted review limited to legal questions, held § 220.31 is indivisible, applied the categorical approach, and concluded the statute can criminalize substances not listed in the federal CSA, so the conviction is not a federal aggravated felony; it vacated the agency’s rulings denying asylum and cancellation and remanded.
Issues
| Issue | Harbin's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether NYPL § 220.31 is divisible or indivisible for aggravated‑felony analysis | § 220.31 defines a single crime (sale of “a controlled substance”); substances are mere means, so statute is indivisible | Incorporation of state drug schedules makes the statute divisible by listing alternative offense elements | § 220.31 is indivisible (single offense with alternative means) |
| Whether a § 220.31 conviction is a drug‑trafficking aggravated felony under the INA when state schedule includes substances not in the CSA | Because NY schedule is broader than the CSA, § 220.31 criminalizes conduct not punishable under federal law, so it is not an aggravated felony | The conviction should count as aggravated felony because it is for sale of a controlled substance listed by reference to state schedules | Applying the categorical approach, § 220.31 is not an aggravated felony (state schedule includes substances outside the CSA) |
| Whether the court may review Harbin’s challenges to withholding and CAT denials (social‑group construction, country evidence, due process) | Agency mischaracterized/bifurcated the social group and ignored evidence; errors rise to due‑process violations | Agency’s findings about likelihood of persecution/torture are factual determinations | Court lacks jurisdiction over factual challenges in removal orders based on certain criminal convictions; these claims are dismissed for lack of jurisdiction |
| Whether Harbin’s due process claim is reviewable | Due process violated by agency’s treatment of social‑group and evidence | Due process claim depends on factual complaints and is therefore unreviewable here | Due process claim is unreviewable given the court’s lack of jurisdiction over the underlying factual claims |
Key Cases Cited
- Mathis v. United States, 136 S. Ct. 2243 (2016) (distinguishes elements from means and guides divisibility analysis)
- Mellouli v. Lynch, 135 S. Ct. 1980 (2015) (applies categorical approach and presumes conviction rests on least culpable conduct)
- Moncrieffe v. Holder, 133 S. Ct. 1678 (2013) (categorical comparison of state drug offenses to CSA for aggravated‑felony determinations)
- Descamps v. United States, 133 S. Ct. 2276 (2013) (explains modified categorical approach for divisible statutes)
- Xiu Xia Lin v. Mukasey, 534 F.3d 162 (2d Cir. 2008) (standard for reviewing agency factual findings)