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.



                                                  1
       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, 

,

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, 

, *1

(2d Cir. Mar. 3, 2010) (summary order) (citing 8 U.S.C. § 1252(a)(2)(C)). Courts of Appeals


                                                 2
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, 

, 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, 

, 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, 

, 783 (2d Cir. 2009) (quoting

Garcia-Padron v. Holder, 

, 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.




       1
        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.”

                                                 3
       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, 

, 123 (2d Cir. 2008) (holding that evidence of

alien’s conviction was sufficient where record included Certificate of Disposition, rap sheet, and


                                                  4
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); 

(“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




                                                     5