Prabhudial v. Holder, 780 F.3d 553

Prabhudial, a Guyanese national and lawful permanent resident since 1983, faced removal based on New York drug convictions: two for possession (N.Y. Penal L. § 220.03) and one for fifth-degree sale (N.Y. Penal L. § 220.31).
He conceded removability before an IJ; the IJ and BIA initially found the sale conviction an aggravated felony, then proceedings were reopened when that conviction was vacated, and cancellation of removal was once granted.
After the sale conviction was later reinstated, a new Notice to Appear charged the same grounds of removability; Prabhudial again conceded removability for possession but contested that the sale conviction was an aggravated felony.
On appeal to the BIA, Prabhudial argued for the first time that Descamps required application of the categorical approach (not the modified categorical approach) to determine whether his sale conviction was an aggravated felony.
The BIA refused to consider that Descamps-based argument as waived for failure to raise it before the IJ; the BIA affirmed the IJ’s determination that the sale conviction was an aggravated felony.
Prabhudial petitioned for review; the Second Circuit considered whether it could review the legal question given the BIA’s waiver ruling.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the BIA may apply waiver to arguments not raised before the IJ	Prabhudial: BIA should reach Descamps claim even if not raised below	Government/BIA: BIA properly declined to consider an argument not raised before the IJ	BIA may apply waiver; appellate court will not consider arguments first raised in judicial review
Whether Descamps required use of the categorical approach for his sale conviction	Prabhudial: Descamps bars modified categorical analysis for his offense	Government: Issue waived before the IJ; merits not before the court	Court did not reach merits because argument was waived and thus not properly before it
Whether the court has jurisdiction to review removal based on an aggravated felony where only the Descamps legal question is raised	Prabhudial: Seeks review of a legal question under §1252(a)(2)(D)	Government: Lack of jurisdiction because the only legal question was waived below	Court dismissed for lack of jurisdiction because the sole legal question was not before it
Whether a pre-merits hearing Descamps decision required raising the claim before the IJ	Prabhudial: Descamps was decided before final hearing and could have been raised	Government/BIA: Prabhudial failed to raise it at the IJ despite Descamps being available	Court: Prabhudial failed to raise the issue at the IJ; waiver proper

Pinos-Gonzalez v. Mukasey, 519 F.3d 436 (8th Cir. 2008) (upholding agency application of waiver to arguments not raised before the IJ)
Okla. Tax Comm’n v. Chickasaw Nation, 515 U.S. 450 (1995) (appellate bodies generally decline issues not raised below)
Pascual v. Holder, 707 F.3d 403 (2d Cir. 2013) (discussing categorical approach reviewability)
Higgins v. Holder, 677 F.3d 97 (2d Cir. 2012) (retaining jurisdiction to review legal questions about aggravated felonies)