United States Second Circuit

Petition for review of a Board of Immigration Appeals (BIA) decision affirming an Immigration Judge (IJ) finding that petitioner's conviction for fifth-degree criminal sale of a controlled substance under New York Penal Law section 220.31 was an aggravated felony and that petitioner was therefore removable and ineligible for cancellation of removal is dismissed, the Government's motion to dismiss for lack of jurisdiction is granted, and petitioner's motion for a stay of removal is denied, where: 1) petitioner failed to raise his argument that the categorical approach, rather than the modified categorical approach, applied to his sale conviction before the IJ; 2) the BIA may apply the doctrine of waiver to matters not raised before an IJ; and 3) because the only question of law in petitioner's petition for review is not properly before this court, it lacks jurisdiction over the petition.

Appellate Information

• Decided 03/12/2015
• Published 03/12/2015

Judges

Court

• United States Second Circuit

Counsel