15-3285-ag
Perez Henriquez v. Sessions
In the
United States Court of Appeals
for the Second Circuit
AUGUST TERM 2017
No. 15‐3285‐ag
MANUEL DE JESUS PEREZ HENRIQUEZ,
Petitioner,
v.
JEFFERSON B. SESSIONS III,
UNITED STATES ATTORNEY GENERAL,
Respondent.
ARGUED: APRIL 17, 2018
DECIDED: MAY 8, 2018
Before: CABRANES AND LOHIER, Circuit Judges, Berman, District Judge.*
Judge Richard M. Berman, of the United States District Court for the Southern
*
District of New York, sitting by designation.
Petitioner Manuel De Jesus Perez Henriquez (“petitioner” or
“Perez”) seeks review of an October 7, 2015, decision of the BIA
affirming an April 20, 2015, decision of an Immigration Judge (“IJ”)
ordering his removal. In re Manuel De Jesus Perez Henriquez, No. A036
542 739 (B.I.A. Oct. 7, 2015), aff’g No. A036 542 739 (Immig. Ct. N.Y.
City Apr. 20, 2015).
Perez was found removable based on his conviction for
possession of a controlled substance in the fifth degree in violation of
New York Penal Law (“N.Y.P.L.”) § 220.06. He was found ineligible
for cancellation of removal based on his conviction for bail jumping,
in violation of N.Y.P.L. § 215.57, which the BIA concluded was an
aggravated felony.
Perez challenges both of these determinations on appeal,
arguing that his conviction for possession of a controlled substance in
the fifth degree did not render him removable, and that his conviction
for bail jumping did not constitute an aggravated felony rendering
him ineligible for cancellation of removal. Although we have not
previously opined on the bail jumping issue, we reject both arguments.
Accordingly, the petition for review is DENIED.
MICHAEL RAYFIELD, Mayer Brown LLP,
New York, N.Y., for Petitioner.
2
ROBERT MICHAEL STALZER (Julie M. Iversen,
on the brief) for Chad A. Readler, Acting
Assistant Attorney General, Washington,
D.C., for Respondent.
JOSÉ A. CABRANES, Circuit Judge:
Petitioner Manuel De Jesus Perez Henriquez (“petitioner” or
“Perez”) seeks review of an October 7, 2015, decision of the BIA
affirming an April 20, 2015, decision of an Immigration Judge (“IJ”)
ordering his removal. In re Manuel De Jesus Perez Henriquez, No. A036
542 739 (B.I.A. Oct. 7, 2015), aff’g No. A036 542 739 (Immig. Ct. N.Y.
City Apr. 20, 2015).
Perez was found removable based on his conviction for
possession of a controlled substance in the fifth degree in violation of
New York Penal Law (“N.Y.P.L.”) § 220.06. He was found ineligible
for cancellation of removal based on his conviction for bail jumping,
in violation of N.Y.P.L. § 215.57, which the BIA concluded was an
aggravated felony.
Perez challenges both of these determinations on appeal,
arguing that his conviction for possession of a controlled substance in
the fifth degree did not render him removable, and that his conviction
for bail jumping did not constitute an aggravated felony rendering
him ineligible for cancellation of removal. Although we have not
previously opined on the bail jumping issue, we reject both arguments.
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Accordingly, the petition for review is DENIED.
DISCUSSION
I.
Perez first contends that the BIA erred in finding that his
conviction for possession of a controlled substance in the fifth degree,
in violation of N.Y.P.L. § 220.06, was a controlled substance offense
that rendered him removable. Because petitioner raises a question of
law, we have jurisdiction to consider this issue. Vargas‐Sarmiento v.
U.S. Dep’t of Justice, 448 F.3d 159, 164 (2d Cir. 2006).
Perez was convicted under a statute that is not categorically a
controlled substance offense, because the New York State controlled
substance schedule sweeps more broadly than the federal controlled
substance schedule. See Harbin v. Sessions, 860 F.3d 58, 63 (2d Cir. 2017)
(explaining that New York’s controlled substance schedule is broader
than the federal schedule). However, N.Y.P.L. § 220.06 is a divisible
statute, because each distinct subsection of the statute contains
separate elements that must be proven beyond a reasonable doubt in
order to sustain a conviction under that subsection. See Mathis v. United
States, 136 S. Ct. 2243, 2249 (2016) (explaining that a statute is divisible
when it lists elements in the alternative, thereby defining multiple
crimes). The different subsections of § 220.06 are thus not
interchangeable, as petitioner suggests. Because the statute is
divisible, the agency properly consulted Shepard documents in order
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to ascertain the elements of petitioner’s underlying conviction. See
Shepard v. United States, 544 U.S. 13 (2005).
Petitioner further contends that even if N.Y.P.L. § 220.06 is
divisible, the government did not prove that he was convicted of
possessing a substance that is contained within the federal controlled
substance schedule. To establish that Perez’s fifth‐degree possession
of a controlled substance conviction involved a federally‐controlled
substance, the government submitted three Shepard documents to the
IJ: (1) a superior court information, a (2) waiver of indictment, and (3)
a certificate of disposition. Appeal Record (“A.R.”) 541‐43. The
government offered these documents to prove that petitioner pleaded
guilty to violating subsection (5) of N.Y.P.L § 220.06, which
criminalizes the possession of cocaine that weighs 500 milligrams or
more. N.Y.P.L. § 220.06(5).
The information makes clear that Perez was charged with
violating N.Y.P.L § 220.06 subsection (5), and it also specifically
mentions cocaine. A.R. 542. Perez’s waiver of indictment, however,
states only that he was charged with criminal possession of a
controlled substance in the fifth degree, without specifying the
subsection. A.R. 543. And the final certificate of disposition states only
that Perez pleaded guilty to the crime of “criminal possession of a
controlled substance 5th degree PL 220.06.” A.R. 541.
The government contends that the information, petitioner’s
waiver of indictment, and the record of conviction together establish
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that petitioner pleaded guilty to subsection (5). Although the
government could have provided a more complete record of
conviction—a sentencing transcript, or a plea colloquy, for example—
we rely in part on the fact that petitioner does not argue in his briefing
that he could have pleaded guilty to a different subsection of § 220.06
than that listed on the information. See Pet. Br. P. 37, n.8 (“The BIA also
rejected Perez’s argument “that, under New York Criminal Procedure
Law . . . § 220.20(1)(i), a defendant could plead to a different subsection
of NYPL § 220.06 than that identified in the information and that such
a plea would constitute a plea to a ‘lesser included offense.’” BA4. We
do not make this argument on appeal.”). Petitioner thus appears to
concede that he could not have pleaded guilty to a different subsection
than that charged in the information, while simultaneously arguing
that the government has not offered sufficient proof that he pleaded
guilty to that subsection. We are not persuaded. We thus hold that the
BIA did not err in finding that petitioner pleaded guilty to possessing
cocaine.
Cocaine is a controlled substance under federal law. 8 U.S.C.
§ 1227(a)(2)(B)(i); N.Y.P.L. § 220.06(5) (2001); 21 U.S.C. § 812, at
Schedule II(a)(4) (2001) (listing cocaine). The BIA thus correctly
determined that Perez was removable as charged because he had been
convicted of a controlled substance offense.
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II.
We write principally to address petitioner’s second argument,
which is that even if his controlled substance offense rendered him
removable, the BIA erred in holding that his prior New York State bail
jumping (“failure to appear”) conviction was an aggravated felony
that rendered him ineligible for cancellation of removal. Whether
Perez’s bail jumping conviction is an aggravated felony rendering him
ineligible for cancellation of removal raises another reviewable
question of law. 8 U.S.C. § 1252(a)(2)(D). We evaluate this question
under the principles of deference set forth in Chevron USA Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).
a.
We first reject petitioner’s argument that 8 U.S.C.
§ 1101(a)(43)(T) does not set forth the elements of the generic federal
crime for failure to appear, because the agency’s interpretation, which
is contrary to petitioner’s interpretation, is entitled to deference. Florez
v. Holder, 779 F.3d 207, 209‐10 (2d Cir. 2015); In re Garza‐Olivares, 26 I.
& N. Dec. 736, 739 (B.I.A. 2016). Petitioner’s related “mens rea”
argument—based on the alleged inapplicability of § 1101—is also
without merit.
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b.
To determine whether a conviction for failure to appear is an
aggravated felony, we must consider whether the statute of conviction
satisfies the elements listed in § 1101(a)(43)(T), which requires (1) a
“failure to appear” (2) “before a court” (3) “pursuant to a court order”
(4) “to answer to or dispose of a charge of a felony” (5) “for which a
sentence of 2 years’ imprisonment or more may be imposed.” 8 U.S.C.
§ 1101(a)(43)(T); see also Garza‐Olivares, 26 I. & N. at 739. Perez’s
conviction, under N.Y.P.L. § 215.57, satisfies the first four elements of
§ 1101(a)(43)(T) on its face.
The fifth element is also satisfied. Considering the statutory
scheme as a whole, we conclude that subsection (T)’s sentence
requirement relates to the failure to appear and not, as the government
suggests, to the sentence imposed on a petitioner’s underlying felony.
Compare 8 U.S.C. § 1101(a)(43)(Q) (specifying that the “underlying
offense [must be] punishable for a term of 5 years or more” (emphasis
added)) with 8 U.S.C. § 1101(a)(43)(T) (lacking “underlying offense”
language); see In re Barnet, 737 F.3d 238, 247 (2d Cir. 2013) (“Statutory
enactments should . . . be read so as to give effect, if possible, to every
clause and word of a statute.” (citations and internal quotations
omitted)).
We next consider whether § 1101(a)(43)(T)’s phrase “may be
imposed” refers to a sentence for which the maximum penalty is more
than two years or for which the minimum sentence must exceed two
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years. See 8 U.S.C. § 1101(a)(43)(T). Considering the meaning of other
aggravated felony provisions under 8 U.S.C. § 1101(a)(43), we join two
other Circuits and the BIA in concluding that “may be imposed” refers
to the maximum penalty authorized. See Renteria‐Morales v. Mukasey,
551 F.3d 1076, 1089 (9th Cir. 2008); United States v. Graham, 169 F.3d
787, 791 (3d Cir. 1999); In re Garza‐Olivares, 26 I. & N. Dec. at 739; see
also In re Adeniye, 26 I. & N. Dec. 726, 727‐30 (B.I.A. 2016).
Accordingly, New York’s bail jumping statute fulfills the sentence
requirement of § 1101(a)(43)(T) because the maximum sentence for
first‐degree bail jumping is seven years, N.Y.P.L. § 70.00(2)(d); see also
N.Y.P.L. 215.57 (categorizing bail jumping in the first degree as a class
D felony).
Perez’s bail jumping conviction is thus an aggravated felony
and the BIA did not err in finding that he was ineligible for cancellation
of removal.
CONCLUSION
We have reviewed all of the arguments raised by petitioner on
appeal and find them to be without merit. For the foregoing reasons,
the petition for review is DENIED.
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Perez Henriquez v. Sessions
Combined Opinion