Pascual v. Holder
723 F.3d 156
| 2d Cir. | 2013Background
- Pascual, a Dominican citizen, seeks rehearing of our denial of review of a BIA order affirming an IJ finding of ineligibility for cancellation of removal due to an aggravated felony conviction.
- We previously held that NYPL § 220.39(1) categorically constitutes an aggravated felony under INA § 1101(a)(43)(B) and dismissed the petition.
- Panel rehearing was granted to address Pascual and amici; we adhere to the prior conclusion and dismiss Pascual’s petition.
- The relevant 2008 NYPL conviction is for third-degree criminal sale of a controlled substance (cocaine).
- Pascual contends the NYPL offense sometimes covers mere offers to sell, which would not map to a federal drug-trafficking offense; the government argues the NYPL offense criminalizes conduct within the INA’s scope.
- We reaffirm that the NYPL § 220.39 offense is categorically an aggravated felony under the INA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether NYPL §220.39(1) is categorically an aggravated felony under INA | Pascual argues it is not categorically within INA scope | Pascual holds the NYPL offense maps to drug trafficking | Yes, categorically within INA scope |
| Whether NYPL §220.39 criminalizes mere offers to sell drugs | Savage-like argument that it may cover mere offers | Statute requires bona fide offers with intent to follow through | No; not merely offers, but bona fide offers with intent to follow through fall within INA drug trafficking |
| Whether the conduct constitutes a substantial step toward the sale of drugs | Argues no substantial step beyond mere offer | Offering to sell with intent/ability is a substantial step | Yes; an offer with intent to carry out is a substantial step and an overt act |
Key Cases Cited
- Lopez v. Gonzales, 549 F.3d 47 (U.S. 2006) (definition of drug offenses mapping from state to federal law)
- Martinez v. Mukasey, 551 F.3d 113 (2d Cir. 2008) (max term under CSA governs categorization of offenses as aggravated felonies)
- Savage v. United States, 542 F.3d 959 (2d Cir. 2008) (prior unrelated holding on controlled substance offense definitions)
- United States v. Delvecchio, 816 F.2d 859 (2d Cir. 1987) (definition of substantial step and overt acts in attempts)
- Moncrieffe v. Holder, 133 S. Ct. 1678 (S. Ct. 2013) (small amount of marijuana as misdemeanor; relevance to aggravated felony)