Pascual v. Holder
2013 U.S. App. LEXIS 3514
| 2d Cir. | 2013Background
- Pascual, Dominican citizen, was admitted as a lawful permanent resident in 1993.
- He faced removal based on a 2000 Connecticut cocaine-possession conviction and a 2008 New York third-degree cocaine sale conviction.
- The IJ found the New York conviction an aggravated felony, making Pascual ineligible for cancellation of removal.
- BIA affirmed the IJ’s aggravated-felony determination.
- Petition for review challenging removal and seeking continuance was filed; government moved to dismiss for lack of jurisdiction.
- Court grants the government’s motion and dismisses petition for lack of jurisdiction, denying mootness of other motions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether NYPL § 220.39(1) constitutes an aggravated felony | Pascual argues it is not categorically an aggravated felony | Government contends it is an aggravated felony under the categorical approach | Yes; NYPL § 220.39(1) matches a federal felony under CSA |
| Whether the court has jurisdiction to review an aggravated-felony removal order | Pascual seeks review of removal order despite aggravated felony | Government argues jurisdiction is lacking when aggravated felony exists | The court lacks jurisdiction to review the order; petition dismissed |
| Whether the denial of a continuance is reviewable | Contenance denial should be reviewable as part of the petition | Issues moot due to jurisdictional dismissal | Moot and not reviewed |
| Whether additional challenges to removability survive dismissal | Pascual asserts further challenges to IJ’s decision | Challenges fall with jurisdictional dismissal | Not reviewed due to lack of jurisdiction |
Key Cases Cited
- Lopez v. Gonzales, 549 U.S. 47 (Supreme Court 2007) (federal definition of aggravated felony as a drug-trafficking offense)
- Higgins v. Holder, 677 F.3d 97 (2d Cir. 2012) (categorical approach for aggravated felony)
- Montesquieu v. Holder, 350 F. App’x 569 (2d Cir. 2009) (first appellate-course determination on NYPL § 220.39 as aggravated felony)
- Medina Lopez v. Attorney Gen. of U.S., 425 F. App’x 146 (3d Cir. 2011) (unpublished/official-app’x discussing NYPL § 220.39 as aggravated felony)
- Griffith v. Attorney Gen. of U.S., 400 F. App’x 632 (3d Cir. 2010) (aggravated felony categorization under state drug offenses)
- Clarke v. Holder, 386 F. App’x 501 (5th Cir. 2010) (concurrence on drug-offense FELONY categorization)