Manuel Pascual, a Dominican Republic citizen, petitions for review of a Board of Immigration Appeals (BIA) decision affirming an immigration judge's (IJ) finding that Pascual was convicted of an aggravated felony, which renders him ineligible for cancellation of removal from the United States. The IJ determined Pascual's 2008 New York state conviction for third-degree criminal sale of a controlled substance (cocaine) under NYPL 220.39(1) constituted an aggravated felony. Pascual had previously been charged with removability due to a 2000 Connecticut conviction for cocaine possession.
Pascual's petition includes a request for a stay of removal, a motion for leave to proceed in forma pauperis, and the appointment of counsel; however, the government moves to dismiss his petition, arguing that the aggravated felony determination strips the Court of jurisdiction to review the removal order. The Court grants the government's motion to dismiss, confirming the BIA's correct characterization of Pascual's conviction as an aggravated felony, leading to the dismissal of his appeal. The Court also denies Pascual's additional motions as moot. The ruling underscores that while the Court lacks jurisdiction over removal orders against aggravated felony convicts, it retains the ability to review constitutional claims or legal questions regarding the classification of offenses.
The Court has not previously ruled on whether a conviction under NYPL 220.39, a Class B felony, qualifies as an aggravated felony. Some district courts in the Circuit have determined that it does, aligned with unpublished opinions from other circuits. An aggravated felony includes illicit trafficking in controlled substances as defined under federal law. According to the Supreme Court, a state offense is considered a felony under the Controlled Substances Act (CSA) only if it corresponds to a federal felony. For a state drug offense to be classified as an aggravated felony, it must correspond to an offense punishable by a prison term exceeding one year under the CSA.
The Court employs a "categorical approach," focusing solely on the minimum conduct necessary for a conviction under the statute, rather than individual circumstances. The analogous federal statute to NYPL 220.39 is 21 U.S.C. 841(a)(1), which prohibits the distribution or possession with intent to distribute controlled substances, punishable by more than one year. A defendant argued that offers to sell are not included in drug trafficking crimes under CSA, but the Court clarified that "distribution" does not necessitate an actual sale, as it encompasses any transfer of a controlled substance.
Since the BIA correctly identified Pascual’s conviction as an aggravated felony, the Court lacks jurisdiction over his petition for review. Consequently, the Government’s motion to dismiss is granted, and the Court does not address Pascual’s other claims, such as the IJ's denial of a continuance, due to the jurisdictional issue. The petition for review is dismissed for lack of jurisdiction.
