494 F. App'x 169
2d Cir.2012Background
- Pennant, a Jamaican citizen, was convicted in New York of attempted sale of marijuana under N.Y. Penal Law § 221.40.
- The Board of Immigration Appeals dismissed Pennant's appeal, agreeing Pennant was removable as an aggravated felon and ineligible for cancellation of removal.
- The IJ’s decision and BIA ruling were reviewed for legal error, not factual reweighing, under 8 U.S.C. § 1252(b)(4)(B).
- The BIA concluded the marijuana conviction qualified as an aggravated felony under the modified categorical approach.
- Pennant challenges the BIA’s divisibility analysis and its reliance on an arresting-officer affidavit to classify the offense, arguing the analysis was incomplete.
- This court GRANTED the petition for review and remanded for a proper first-step divisibility determination and for a fuller modified categorical analysis.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is NY § 221.40 divisible, permitting a modified CAT analysis? | Pennant argues BIA failed to analyze divisibility. | Holder asserts divisibility is not in dispute or should be resolved under current framework. | Remand to decide divisibility in the first instance. |
| Did the BIA improperly rely on the police affidavit to classify the offense as an aggravated felony? | Pennant contends the affidavit’s facts cannot be used to establish the offense under modified CAT. | Holder maintains the affidavit supports the elements of the offense for aggravated felony analysis. | Remand to determine proper use of the affidavit within record-of-conviction constraints. |
| Should the BIA apply a true modified categorical analysis by examining the record of conviction and not extrinsic documents? | Pennant argues the analysis must be limited to elements admitted or proven in the record of conviction. | Holder would allow consideration of additional documents if permissible under the modified approach. | Remand for consideration of whether the entire record including plea-related materials can be part of the record of conviction. |
Key Cases Cited
- Martinez v. Mukasey, 551 F.3d 113 (2d Cir. 2008) (modified categorical approach does not apply if statute is not divisible)
- Lanferman v. BIA, 576 F.3d 84 (2d Cir. 2009) (divisibility determination required before second-step analysis)
- Akinsade v. Holder, 678 F.3d 138 (2d Cir. 2012) (limits consideration to elements proven in record of conviction)
- Poradisova v. Gonzales, 420 F.3d 70 (2d Cir. 2005) (modified categorical analysis and evidence limits)
- Dulal-Whiteway v. U.S. Dep’t of Homeland Sec., 501 F.3d 116 (2d Cir. 2007) (enumerates permissible materials for record-of-conviction analysis)
- James v. Mukasey, 522 F.3d 250 (2d Cir. 2008) (divisibility analysis standards and framework guidance)
- Nijhawan v. Holder, 557 U.S. 29 (Supreme Court 2009) (pertains to interpretation of conviction-related conduct under federal law)