Landazury v. Holder , 388 F. App'x 10 ( 2010 )

09-1841-ag
Landazury v. Holder
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUM M ARY ORDER
FILED AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1. WHEN CITING A SUM M ARY ORDER IN A DOCUM ENT FILED WITH THIS COURT, A PARTY
M UST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY OF IT ON ANY PARTY
NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 19 th day of July, two thousand and ten.
PRESENT:
PIERRE N. LEVAL,
BARRINGTON D. PARKER,
PETER W. HALL,
Circuit Judges.
__________________________________________
LUIS RIVAS LANDAZURY,
Petitioner,
v. Docket No. 09-1841-ag
ERIC H. HOLDER, JR., United States Attorney General,
Respondent.
__________________________________________
FOR PETITIONER: MARY ELIZABETH DELLI-PIZZI, Babylon Village, N.Y.
FOR RESPONDENT: LAURA HALLIDAY HICKEIN , Trial Attorney (Tony West, Assistant
Attorney General, Douglas E. Ginsberg, Assistant Director), Office
of Immigration Litigation, Civil Division, United States
Department of Justice, Washington, D.C.
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UPON DUE CONSIDERATION, of this petition for review of a Board of Immigration
Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the
petition for review is DENIED.
Petitioner Luis Rivas Landazury, a native and citizen of Colombia, seeks review of a
February 11, 2009 order of the BIA affirming the October 30, 2008 decision of Immigration
Judge (“IJ”) Roger Sagerman, finding Landazury ineligible for cancellation of removal or
adjustment of status based on his conviction for an aggravated felony narcotics trafficking
offense, and ordering him removed from the United States. See In re Luis Rivas Landazury, No.
A028 749 602 (B.I.A. Feb. 11, 2009), aff’g No. A028 749 602 (Immig. Ct. Napanoch, NY, Oct.
30, 2008). We assume the parties’ familiarity with the underlying facts and procedural history of
the case.
This Court has jurisdiction over final orders of removal pursuant to 8 U.S.C. §
1252(a)(1), as amended by § 106 of the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231(2005), which confers exclusive jurisdiction on the Courts of Appeals to review final orders of
removal. We generally do not, however, have jurisdiction to review final orders of removal for
aliens removable by reason of having committed a controlled substance violation or an
aggravated felony offense. See 8 U.S.C. § 1252(a)(2)(C). “As a rule, federal courts lack
jurisdiction to review final agency orders of removal based on an alien’s conviction for certain
crimes, including aggravated felonies,” Vargas-Sarmiento v. U.S. Dep’t of Justice, 448 F.3d 159,
164 (2d Cir. 2006) (citing 8 U.S.C. § 1252(a)(2)(C)), or based on an alien’s conviction for certain
“controlled substance violation[s],” Arostegui v. Holder, No. 09-1236-ag, 2010 WL 724319, *1
(2d Cir. Mar. 3, 2010) (summary order) (citing 8 U.S.C. § 1252(a)(2)(C)). Courts of Appeals
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nevertheless retain jurisdiction to review an order of removal insofar as the petition for review
order raises “constitutional claims or questions of law,” 8 U.S.C. § 1252(a)(2)(D), which we
review de novo. See Pierre v. Holder, 588 F.3d 767, 772 (2d Cir. 2009). We review the BIA’s
factual findings under the substantial evidence standard, treating them as “conclusive unless any
reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. §
1252(b)(4)(B); see also Zaman v. Mukasey, 514 F.3d 233, 238 (2d Cir. 2008). “[W]here, as here,
the BIA affirms but does not expressly adopt the IJ’s decision, the BIA’s decision alone is ‘the
basis for judicial review.’” Almeida v. Holder, 588 F.3d 778, 783 (2d Cir. 2009) (quoting
Garcia-Padron v. Holder, 558 F.3d 196, 199 (2d Cir. 2009)).
In May 2006, Landazury was convicted in the Supreme Court of New York, Queens
County, pursuant to his guilty plea for, inter alia, attempted criminal possession of a controlled
substance in the fifth degree in violation of New York Penal Law (“NYPL”) § 220.06(1)1 (“2006
drug conviction”). The following month he was sentenced to five years probation for this
offense. In October 2007, Landazury was arrested for, inter alia, aggravated driving while
intoxicated in violation of New York Vehicle & Traffic Law § 1192(2-A). He was convicted in
February 2008 pursuant to his guilty plea for this offense (“2008 DWI conviction”). Later that
month, Landazury was sentenced for his 2008 DWI conviction and received a fine. Because his
2008 DWI conviction was a violation of his probationary sentence on this 2006 drug conviction,
Landazury was also resentenced to one year of imprisonment for that prior conviction.
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NYPL § 220.06(1) provides: “[a] person is guilty of criminal possession of a controlled
substance in the fifth degree when he knowingly and unlawfully possesses . . . a controlled
substance with intent to sell it.”
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In June 2008, the Department of Homeland Security served Landazury with a notice to
appear charging that he was removable pursuant to 8 U.S.C. § 1227(a)(2)(B)(i), because after he
was admitted to this country he was convicted of a controlled substance violation, and pursuant
to 8 U.S.C. §§ 1227(a)(2)(A)(iii) and 1101(a)(43)(B), because after he was admitted he was
convicted of an aggravated felony drug trafficking crime.
Landazury “concede[s] . . . that he was convicted of a crime relating to a controlled
substance, and as such, is removable under 8 U.S.C. § 1227(a)(2)(B)(I).” Appellant’s Br. 13.
He argues, however, that his 2006 drug conviction does not constitute an aggravated felony drug
trafficking offense and that, as a result, the BIA’s conclusion that he is ineligible for cancellation
of removal is erroneous. See 8 U.S.C. § 1229b(a)(3) (The Attorney General may cancel removal
“if the alien . . . has not been convicted of any aggravated felony”). While conceding that a
conviction under NYPL § 220.06(1) is an aggravated felony drug trafficking offense, Landazury
instead asserts that as a matter of fact the evidence in the record did not establish that he was
convicted of violating subsection (1) of this section, which provides that an element of the
offense is the intent to sell a controlled substance. See NYPL § 220.06(1). Put another way,
Landazury argues that he was convicted for possession of a controlled substance, not for
possession with intent to sell. That argument is without merit. The documents of conviction in
the record include the Certificate of Disposition, Landazury’s rap sheet, and his testimony before
the IJ admitting that he pled to the element of intent to sell in order to receive probation. This
evidence demonstrates that Landazury was convicted of violating subsection (1) of NYPL §
220.06. See Savchuck v. Mukasey, 518 F.3d 119, 123 (2d Cir. 2008) (holding that evidence of
alien’s conviction was sufficient where record included Certificate of Disposition, rap sheet, and
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sentence and order of commitment “coupled with the fact that [petitioner] admitted to the
convictions in his testimony . . ..”). The BIA thus correctly determined that Landazury failed to
establish eligibility for relief. See 8 U.S.C. § 1229b(a)(3); id. § 1229a(c)(4)(A)(i) (“An alien
applying for relief . . . has the burden of proof to establish that the alien . . . satisfies the
applicable eligibility requirements”); 8 C.F.R. § 1240.8(d) (“If the evidence indicates that one or
more of the grounds for mandatory denial of the application for relief may apply, the alien shall
have the burden of proving by a preponderance of the evidence that such grounds do not apply.”).
We have considered all of Landazury’s other arguments and find them to be without
merit. For the foregoing reasons, the petition for review is DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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