16-2624
Austin v. Sessions
BIA
Wright, IJ
A039 746 160
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE
(WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the
2 Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the 10th day
4 of July, two thousand seventeen.
5
6 PRESENT:
7 ROBERT D. SACK,
8 SUSAN L. CARNEY,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 MARSHA EVANGELINE AUSTIN, AKA MARSHA
14 AUSTIN, AKA MARCIA AUSTIN, AKA MARSHE
15 AUSTIN, AKA MARCIA HUNT, AKA MARSHA
16 HUNT,
17 Petitioner,
18
19 v. 16-2624
20
21 JEFFERSON B. SESSIONS III, UNITED
22 STATES ATTORNEY GENERAL,
23 Respondent.
24 _____________________________________
25
26 FOR PETITIONER: PETER L. MARKOWITZ (Rehana Jamal, Samantha
27 Hamidan, Marissa Wong, Legal Interns,
28 on the briefs), Immigration Justice
29 Clinic, Benjamin N. Cardozo School of
30 Law, New York, NY.
31
1 FOR RESPONDENT: D. NICHOLAS HARLING, Trial Attorney (Sheri
2 R. Glaser, Trial Attorney; Chad A.
3 Readler, Acting Assistant Attorney
4 General; Jessica A. Dawgert, Senior
5 Litigation Counsel, on the brief),
6 Office of Immigration Litigation,
7 United States Department of Justice,
8 Washington, DC.
9
10 UPON DUE CONSIDERATION of this petition for review of a Board
11 of Immigration Appeals (“BIA”) decision, it is hereby ORDERED,
12 ADJUDGED, AND DECREED that the petition for review is DENIED.
13 Petitioner Marsha Evangeline Austin seeks review of a July 22,
14 2016 decision of the BIA affirming a January 13, 2015 decision of
15 an Immigration Judge (“IJ”) ordering her removed and finding her
16 ineligible for cancellation of removal. In re Marsha Evangeline
17 Austin, No. A039 746 160 (B.I.A. July 22, 2016), aff’g No. A039 746
18 160 (Immig. Ct. N.Y.C. Jan. 13, 2015). We assume the parties’
19 familiarity with the underlying facts and procedural history of this
20 case, and the issues presented for review, to which we refer only
21 as needed to explain our decision to deny the petition.
22 We have reviewed the IJ’s decision as modified by the BIA (i.e.,
23 minus the IJ’s discretionary denial of cancellation of removal, an
24 issue that the BIA declined to reach). See Xue Hong Yang v. U.S.
25 Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). We generally
26 lack jurisdiction to review a final order of removal against an alien
27 such as Austin, who was found removable for an aggravated felony or
28 controlled substance offense conviction. We have jurisdiction,
2
1 however, to consider constitutional claims and questions of law. 8
2 U.S.C. §§ 1252(a)(2)(C), (D), 1227(a)(2)(A)(iii), (B). Whether
3 Austin’s 1995 conviction under New York Penal Law (“NYPL”) §§ 110.00
4 and 220.39 for attempted third-degree criminal sale of a controlled
5 substance is an aggravated felony is a question of law over which
6 we have jurisdiction. Vargas-Sarmiento v. U.S. Dep’t of Justice,
7 448 F.3d 159, 164 (2d Cir. 2006).
8 I. Categorical Approach
9 The Immigration and Nationality Act (“INA”) defines “aggravated
10 felony” to include “illicit trafficking in a controlled substance
11 (as defined in [the Controlled Substances Act (‘CSA’)]).” 8 U.S.C.
12 § 1101(a)(43)(B). “[A] state offense constitutes a felony
13 punishable under the [CSA] only if it proscribes conduct punishable
14 as a felony under that federal law.” Pascual v. Holder, 707 F.3d
15 403, 405 (2d Cir. 2013) (“Pascual I”) (internal quotation marks
16 omitted), adhered to on reh’g, 723 F.3d 156 (2d Cir. 2013) (“Pascual
17 II”). “[W]e generally employ a ‘categorical approach’ to determine
18 whether the state offense is comparable to an offense listed in the
19 INA.” Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2013). “Under
20 this approach, we look ‘to whether the state statute defining the
21 crime of conviction categorically fits within the generic federal
22 definition of a corresponding aggravated felony.’” Flores v.
23 Holder, 779 F.3d 159, 165 (2d Cir. 2015) (quoting Moncrieffe, 133
24 S. Ct. at 1684). “[T]he singular circumstances of an individual
3
1 petitioner’s crimes should not be considered, and only the minimum
2 criminal conduct necessary to sustain a conviction under a given
3 statute is relevant.” Pascual I, 707 F.3d at 405 (internal
4 quotations marks omitted).
5 The agency correctly concluded that Austin is ineligible for
6 cancellation of removal because her 1995 conviction under NYPL
7 §§ 110.00 and 220.39 for attempted third-degree criminal sale of a
8 controlled substance is an aggravated felony. See 8 U.S.C.
9 § 1229b(a)(3). We held in Pascual I that a conviction under NYPL
10 § 220.39 is categorically an aggravated felony drug trafficking
11 crime. 707 F.3d at 405. Although Austin argues that her conviction
12 falls outside this holding because she was convicted of an attempted
13 violation of § 220.39, her argument fails to persuade. An attempt
14 to sell a controlled substance is an aggravated felony under the CSA.
15 Id. Moreover, the INA provides that an attempt to commit an
16 aggravated felony is itself an aggravated felony. 8 U.S.C.
17 § 1101(a)(43)(U).
18 Notwithstanding Austin’s arguments to the contrary, the crime
19 of attempt under New York law categorically fits within the crime
20 of attempt under federal law. Under NYPL § 110.00, “[a] person is
21 guilty of an attempt to commit a crime when, with intent to commit
22 a crime, he engages in conduct which tends to effect the commission
23 of such crime.” N.Y. Penal Law § 110.00. Under federal law, “[a]
24 person is guilty of an attempt to commit a crime if he or she (1) had
4
1 the intent to commit the crime, and (2) engaged in conduct amounting
2 to a ‘substantial step’ towards the commission of the crime.” United
3 States v. Martinez, 775 F.2d 31, 35 (2d Cir. 1985). The New York
4 provision is “more stringent than the . . . ‘substantial step’
5 test,” People v. Acosta, 80 N.Y.2d 665, 670 (1993), and requires the
6 defendant to “have engaged in conduct that came dangerously near
7 commission of the completed crime,” People v. Denson, 26 N.Y.3d 179,
8 189 (2015) (internal quotation marks omitted).
9 Because a conviction under NYPL § 220.39 is categorically an
10 aggravated felony drug trafficking crime, and the New York crime of
11 attempt fits categorically within the federal crime of attempt, an
12 attempt to violate NYPL § 220.39 is categorically an aggravated
13 felony.
14 II. “Attempt to Attempt” Argument
15 Austin argues that NYPL §§ 110.00 and 220.39, in combination,
16 could support a conviction for an “attempt to attempt” to sell a
17 controlled substance, a “double inchoate” crime that should not be
18 recognized as an aggravated felony under federal law. She points
19 out that § 110.00 is an attempt provision; that § 220.39 criminalizes
20 (among other things) offers to sell; and that we held in the Pascual
21 decisions that the New York crime of offering to sell a controlled
22 substance is encompassed within the federal crime of attempting to
23 sell a controlled substance. Pairing § 110.00 with § 220.39 would
24 impermissibly criminalize an attempt to attempt, she argues.
5
1 We rejected this same argument in Hidalgo v. Lynch, 664 F. App’x
2 101 (2d Cir. 2016) (summary order). Although Hidalgo is not binding,
3 its reasoning is persuasive. Like the petitioner in Hidalgo, Austin
4 erroneously equates offers to sell with attempts to sell. See
5 Hidalgo, 664 F. App’x at 103. Contrary to Austin’s suggestion, we
6 did not equate offers with attempts in Pascual. Rather, we held that
7 an offer to sell a controlled substance, as that crime is defined
8 under New York law, categorically satisfies the elements of an
9 attempted sale of a controlled substance, as that crime is defined
10 under federal law. Pascual I, 707 F.3d at 405; Pascual II, 723 F.3d
11 at 159. It does not follow that, because an attempted offer to sell
12 under New York law also satisfies the elements of an attempted sale
13 under federal law, New York law criminalizes an “attempt to attempt.”
14 As we concluded in Hidalgo, “[t]he crime of attempting to offer
15 is not a logical impossibility.” Hidalgo, 644 F. App’x at 103. NYPL
16 §§ 110.00 and 220.39 provide “that a person is guilty of an attempt
17 to sell or offer to sell a controlled substance in the third degree
18 when he or she intends unlawfully and knowingly to sell or offer to
19 sell a narcotic drug, and engages in conduct to effect that sale or
20 offer.” Id. Thus, “[f]or example, one who has prepared a written
21 offer of sale and attempts to deliver it to the intended offeree has
22 attempted to make an offer of sale, even if the offer never reaches
23 the intended recipient.” Id.
24 In arguing that NYPL §§ 110.00 and 220.39 could be read together
6
1 so broadly as to criminalize logically incoherent “attempts to
2 attempt,” Austin runs afoul of the Supreme Court’s directive that
3 courts should refrain from “apply[ing] legal imagination to the state
4 offense,” and determine instead whether there is “a realistic
5 probability, not a theoretical possibility, that the State would
6 apply its statute to conduct that falls outside the generic
7 definition of a crime.” Moncrieffe, 133 S. Ct. at 1684-85 (internal
8 quotation marks omitted). As we observed in Hidalgo, “New York
9 adheres to the general rule refusing to recognize an attempt to commit
10 a crime that is itself an attempt.” Hidalgo, 644 F. App’x at 103.
11 As in Hidalgo, here we “have no reason to conclude that a conviction
12 for attempt to violate N.Y. Penal Law § 220.39 can rest on an attempt
13 to attempt a drug sale,” id. at 104, and Austin has not identified
14 any conviction or prosecution in New York for an “attempt to attempt”
15 to sell drugs under NYPL §§ 110.00 and 220.39. We therefore
16 reject as speculative Austin’s argument.
17 We further decline to review the agency’s law of the case
18 determinations, which Austin did not challenge in her opening brief.
19 See Castro v. Holder, 597 F.3d 93, 95 n.2 (2d Cir. 2010). We have
20 considered Austin’s remaining arguments and find them to be without
21 merit.
22 For the foregoing reasons, the petition for review is DENIED.
23 FOR THE COURT:
24 Catherine O’Hagan Wolfe, Clerk of Court
7