Sale of a controlled substance under NYPL 220.31 is not an aggravated felony. Harbin v. Sessions, 860 F.3d 58 (2d Cir. 2017).
In case of Habrin v. Sessions, (2nd Cir, June 21, 2017), the Federal Court for the 2nd Circuit determined that a conviction of sale of a controlled substance under NYPL 220.31 is not an aggravated felony. LPR put into removal proceedings and applied for a cancellation of removal for permanent residents. He was initially disqualified because the government determined that his conviction under NYPL 220.31 was an aggravated felony (under the law an aggravated felony conviction disqualifies an applicant from many immigration benefits, including cancellation of removal, citizenship, and asylum). However, the Second Circuit determined that DHS and the lower courts were incorrect. Full Second Circuit Decision.
In 1991, Harbin was convicted of felony criminal sale of a controlled substance in the fifth degree under NYPL 220.31. His certificate of disposition stated that the controlled substance in question was cocaine. In January of 2012, Harbin was arrested for disorderly conduct. After this arrest, the Department of Homeland Security (DHS) charged Harbin as removable under section 237(a)(2)(A)(ii) of the INA for having been convicted of multiple crimes involving moral turpitude.
Harbin does not appear to have contested his underlying removability before the immigration judge. Instead, he sought relief from removal in the forms of cancellation of removal, asylum, withholding of removal, and CAT. The immigration judge denied all of Harbin's claims for relief and protection and ordered him removed. First, the immigration judge ruled that Harbin's 1991 conviction in violation of NYPL 220.31 was an aggravated felony under 101(a)(43)(B) of the INA, thereby barring him from receiving cancellation of removal (INA 240A(a)(3)) and asylum (INA 208(b)(2)(A)(ii)). The Immigration Judge held that Harbin did not sustain his burden of establishing eligibility for withholding of removal or protection under CAT.
He argued that his conviction for NYPL 220.31 was not an aggravated felony under section 101(a)(43)(B) of the INA because New York's schedule of controlled substances is broader than the federal schedules. As a consequence, he argued that he should not have been barred from cancellation of removal and asylum.
The Second Circuit stated that the text of NYPL 220.31 “suggests that it creates only a single crime, but provides a number of different factual means by which that crime may be committed.” It noted that the statute itself criminalized the sale of a “controlled substance.” While it incorporated the New York controlled substance schedules, the Second Circuit wrote that “it provides no indication that the sale of each substance is a distinct offense.” To that effect, the Second Circuit added that there was no suggestion that jury unanimity with respect to the substance involved was necessary for a conviction. For example, it wrote that “If some jurors believed that a defendant had sold cocaine, and others believed that he had sold heroin, they could still agree that he had solid 'a controlled substance,' and issue a guilty verdict.”
The Second Circuit added that its above reading was “consistent with the law's penalty provisions, which prescribe the same narrow range of penalties for violations of NYPL 220.31 no matter which controlled substance a defendant has sold.” In other words, provided that an individual is convicted of violating NYPL 220.31, the possible sentences that could be imposed are the same regardless of which substance(s) he or she actually sold. In Mathis, 136 S.Ct. at 2256, the Supreme Court wrote that “if statutory alternatives carry different punishments … they must be elements.” The Second Circuit inferred from the language of NYPL 220.31 that because “NYPL 220.31 carries the same penalties for each violation,” it is “in line with our reading of 220.31: that each controlled substance is a mere 'means' of violating the statute, not a separate alternative element.”
DECISION
The Second Circuit found that NYPL 220.31 incorporates at least one substance that is not included in the Federal schedules. N.Y. Pub. Health Law 3306, which lists the drug schedules underlying NYPL 220.31, includes a substance called chorionic gonadotropin [a pregnancy hormone that is available as an injectable drug] as a controlled substance. Chorionic gonadotropin is not a controlled substance under Federal law. Thus, the Second Circuit concluded that because NYPL 220.31 can punish the sale of at least one controlled substance that is not covered under the Federal Controlled Substances Act, it is not an aggravated felony under section 101(a)(43)(B). Accordingly, the Second Circuit ruled that the BIA erred in finding Harbin ineligible for asylum or cancellation of removal.