Filed: Jul. 20, 2020
Latest Update: Jul. 20, 2020
Summary: 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 N
Summary: 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 NO..
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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
23
4