Berhane v. Barr

16-4214 Berhane v. Barr BIA Connelly, IJ A079 724 145 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 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 20th day of July, two thousand twenty. [5] 6 PRESENT: 7 REENA RAGGI, 8 PETER W. HALL, 9 DENNY CHIN, 10 Circuit Judges. 11 _____________________________________ [12] 13 EZRA BERHANE, 14 Petitioner, [15] 16 v. 16-4214 17 NAC 18 WILLIAM P. BARR, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ [22] 23 FOR PETITIONER: Gregory Osakwe, Esq., Hartford, 24 CT. [25] 26 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 27 General, Civil Division; Douglas 28 E. Ginsburg, Assistant Director, 29 Office of Immigration Litigation; 30 Karen L, Melnik, Trial Attorney, 31 Office of Immigration Litigation, 32 United States Department of 1 Justice, Washington, DC. 2 UPON DUE CONSIDERATION of this petition for review of a 3 Board of Immigration Appeals (“BIA”) decision, it is hereby 4 ORDERED, ADJUDGED, AND DECREED that the petition for review 5 is DENIED. 6 Petitioner Ezra Berhane, a native and citizen of 7 Ethiopia, seeks review of a November 22, 2016, decision of 8 the BIA affirming a December 8, 2015, decision of an 9 Immigration Judge (“IJ”) finding Berhane removable for an 10 aggravated felony and denying cancellation of removal, 11 asylum, withholding of removal, and relief under the 12 Convention Against Torture (“CAT”) as to Ethiopia. 1 In re 13 Ezra Berhane, No. A 079 724 145 (B.I.A. Nov. 22, 2016), aff’g 14 No. A 079 724 145 (Immig. Ct. Batavia Dec. 8, 2015). We assume 15 the parties’ familiarity with the underlying facts and 16 procedural history in this case. 17 Our jurisdiction to review Berhane’s final order of 18 removal is limited to “constitutional claims or questions of 19 law.” 8 U.S.C. § 1252 (a)(2)(D). We review de novo Berhane’s 20 challenge to the agency’s aggravated felony determination. 21 Pascual v. Holder, 707 F.3d 403, 404 (2d Cir. 2013) (per 22 curiam), adhered to on reh’g, 723 F.3d 156 (2d Cir. 2013) 1 The agency’s grant of CAT relief as to Eritrea remains in place. [2] 1 (per curiam). We find no error in the agency’s conclusion 2 that Berhane’s conviction is an aggravated felony that bars 3 him from cancellation of removal and asylum. 4 An individual who has been convicted of an aggravated 5 felony is ineligible for cancellation of removal and asylum. [6] 8 U.S.C. §§ 1158 (b)(2)(A)(ii), (B)(i), 1229b(a)(3). In 7 relevant part, an aggravated felony includes “illicit 8 trafficking in a controlled substance (as defined in section 9 802 of Title 21), including a drug trafficking crime (as 10 defined in section 924(c) of Title 18).” 8 U.S.C. 11 § 1101(a)(43)(B). “[T]he term ‘drug trafficking crime’ means 12 any felony punishable under the Controlled Substances Act (21 13 U.S.C. 801 et seq.).” 18 U.S.C. § 924 (c)(2). The Controlled 14 Substances Act prohibits “possess[ion] with intent to 15 manufacture, distribute, or dispense, a controlled 16 substance.” 21 U.S.C. § 841 (a)(1). Berhane was convicted 17 under NYPL § 220.16(1). “A person is guilty of criminal 18 possession of a controlled substance in the third degree when 19 he knowingly and unlawfully possesses . . . a narcotic drug 20 with intent to sell it.” NYPL § 220.16(1). We have held 21 that New York’s definition of sale is a categorical match to 22 the analogous federal statute. See Pascual, 707 F.3d at 405 . 23 Accordingly, possession with intent to sell in New York is a [3] 1 categorical match to possession with intent to distribute 2 under 21 U.S.C. § 841 (a)(1). Id.; see also Espinal v. Lynch, [3] 665 F. App’x 65, 66 (2d Cir. 2016) (unpublished) (applying 4 Pascual to § 220.16(1)). Berhane raises no arguments that 5 would require us to reconsider that conclusion. 6 Accordingly, the only remaining forms of relief were 7 withholding of removal and protection under the CAT. The 8 agency found that Berhane’s conviction was also a 9 particularly serious crime that barred withholding of 10 removal. 8 U.S.C. § 1231 (b)(3)(B)(ii). It denied CAT 11 relief, finding that Berhane had not met his burden of proof. 12 Berhane has abandoned these forms of relief by not challenging 13 these dispositive findings in his brief. See Norton v. Sam’s 14 Club, 145 F.3d 114, 117 (2d Cir. 1998) (“Issues not 15 sufficiently argued in the briefs are considered waived and 16 normally will not be addressed on appeal.”). 17 For the foregoing reasons, the petition for review is 18 DENIED. All pending motions and applications are DENIED and 19 stays VACATED. 20 FOR THE COURT: 21 Catherine O’Hagan Wolfe, 22 Clerk of Court