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SANON v. BARR (2020)

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United States Court of Appeals, Second Circuit.

Dabooz SANON, Petitioner, v. William P. BARR, United States Attorney General, Respondent.

No. 19-1032-ag

Decided: May 05, 2020

PRESENT: RAYMOND J. LOHIER, JR., JOSEPH F. BIANCO, MICHAEL H. PARK, Circuit Judges. FOR PETITIONER: Sarah T. Gillman, Gregory P. Copeland, Rapid Defense Network, New York, NY. FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney General, Linda S. Wernery, Assistant Director, Sarah Byrd, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, D.C.

SUMMARY ORDER

Petitioner Dabooz Sanon, a native and citizen of Haiti, seeks review of a March 29, 2019 decision of the BIA affirming an April 27, 2017 decision of an Immigration Judge (“IJ”) ordering his removal and determining that he was ineligible for cancellation of removal under 8 U.S.C. § 1229b(a). We assume the parties’ familiarity with the underlying facts and the record of prior proceedings, to which we refer only as necessary to explain our decision to deny the petition.

When a petitioner is ordered removed for an aggravated felony or controlled substance offense, our jurisdiction is limited to constitutional claims and questions of law. 8 U.S.C. § 1252(a)(2)(C), (D). We “retain jurisdiction to consider whether a conviction falls within th[is] statutory prohibition,” Centurion v. Holder, 755 F.3d 115, 118 (2d Cir. 2014), including whether the Government failed to sustain its burden to prove the fact of conviction by clear and convincing evidence, id. at 119. We will grant the petition only if we find that “any rational trier of fact would be compelled to conclude that the proof did not rise to the level of clear and convincing evidence.” Id. (quotation marks omitted). We review de novo questions of law, including whether a conviction constitutes an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii). See Pierre v. Holder, 588 F.3d 767, 772 (2d Cir. 2009). Under the circumstances of this case, we review the IJ's decision as modified and supplemented by the BIA's decision. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).

Sanon argues that the Government failed to prove that he had been convicted of a removable offense by “clear and convincing evidence” that is “reasonable, substantial, and probative.” 8 U.S.C. § 1229a(c)(3)(A). We disagree. Keeping in mind the substantial deference we give to the IJ's determination that the fact of conviction was proven, we conclude that the record evidence, including the judgment of conviction from the New Jersey Superior Court, sufficiently demonstrated that, in 2006, Sanon was convicted of violating N.J. Stat. Ann. § 2C:35-5(a)(1), resulting in a sentence of two years’ probation. The alleged defects in the record, including white lines running across certain portions of the photocopied pages, are not enough to render the documents unreliable, since all relevant information remains legible. That the judgment of conviction attached an attestation from the clerk of the court on a separate page does not render the document inadmissible for lack of authentication. We need not decide whether the attachment of the attestation renders the document non-compliant with 8 C.F.R. § 287.6(a), because that regulation “is not the exclusive means of authenticating records.” Cao He Lin v. U.S. Dep't of Justice, 428 F.3d 391, 404 (2d Cir. 2005) (quotation marks omitted). Sanon relies on Francis v. Gonzales, 442 F.3d 131 (2d Cir. 2006), to urge a contrary conclusion. But in Francis factors other than non-compliance with 8 C.F.R. § 287.6(b) cast serious doubt on the reliability of the foreign police record at issue and rendered it inadequate. See id. at 143–44. Those factors are not present here. See also id. at 143 (expressing a preference for “records emanating from neutral courts and magistrates” as more reliable than records from agencies primarily responsible for “detect[ing] and prosecut[ing] crimes”).

Sanon next argues that a conviction under N.J. Stat. Ann. § 2C:35-5(a)(1) does not qualify as an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii). Sanon concedes that on their face both section 2C:35-5(a)(1) and 21 U.S.C. § 841(a)(1) criminalize the “attempted transfer” of controlled substances, N.J. Stat. Ann. § 2C:35-2; 21 U.S.C. § 802(8), and that 21 U.S.C. § 841(a)(1) is a “drug trafficking crime” that qualifies as an aggravated felony under the Immigration and Nationality Act (“INA”), see 8 U.S.C. § 1101(a)(43)(B). But he claims that the definition of attempt under New Jersey law is categorically broader than the definition under federal law because New Jersey law defines attempt to include both mere preparation and mere solicitation, while federal law does not. See United States v. Beardsley, 691 F.3d 252, 259 (2d Cir. 2012) (applying the categorical approach to determine if a state conviction is an aggravated felony).

We disagree with Sanon's characterization of New Jersey and federal attempt law. First, the New Jersey Supreme Court has clarified that New Jersey attempt law distinguishes between “mere preparation” on the one hand and a “substantial step” constituting an attempt on the other. See State v. Farrad, 164 N.J. 247, 257–58, 753 A.2d 648 (2000). We have held that the same distinction applies to an “attempted transfer” of a controlled substance under 21 U.S.C. § 841(a)(1). See Pascual v. Holder, 723 F.3d 156, 159 (2d Cir. 2013). Second, New Jersey law codified the Model Penal Code's formulation of attempt liability, under which solicitation is a “substantial step” only if it is “strongly corroborative of the actor's criminal purpose.” See N.J. Stat. Ann. § 2C:5-1(b); State v. Sunzar, 331 N.J. Super. 248, 257, 751 A.2d 627 (1999); see also Model Penal Code § 5.01(2). Our Court has “effectively adopted the Model [Penal] Code's formulation of attempt in United States v. Stallworth, 543 F.2d 1038, 1040–41 (2d Cir. 1976).” United States v. Farhane, 634 F.3d 127, 146 (2d Cir. 2011). We have further explained that the list of actions including solicitation in section 5.01(2) of the Model Penal Code “shall not be held insufficient as a matter of law” if strongly corroborative of criminal purpose. United States v. Rahman, 189 F.3d 88, 129 (2d Cir. 1999); see also Ming Lam Sui v. I.N.S., 250 F.3d 105, 115–16 (2d Cir. 2001) (relying on the Model Penal Code's formulation in considering whether an attempt crime constitutes an aggravated felony under the INA). Accordingly, there is a categorical match between N.J. Stat. Ann. § 2C:35-5(a)(1) and 21 U.S.C. § 841(a)(1), and Sanon's state conviction constitutes an aggravated felony.

We have considered Sanon's remaining arguments and conclude that they are without merit. For the foregoing reasons, the petition for review is DENIED.

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