New York, New York — Kerry Bretz, Partner, Bretz & Coven, LLP, says the Second Circuit Court of Appeals’ decision in Harbin v. Lynch is a precedent-setting one in that lawful permanent residents convicted of certain controlled substance offenses may no longer be deportable. He also urged them to seek legal counsel if such a case comes up.
In Harbin v. Lynch, the respondent had been convicted of violating NYPL 220.31, criminal sale of a controlled substance in the 5th degree. The Department of Homeland Security filed charges against the non-citizen, alleging that his conviction was a drug trafficking offense and an aggravated felony under the Immigration and Nationality Act (INA).
The Second Circuit found that NYPL 220.31 was not a divisible statute and, therefore, was only required to apply the categorical approach in order to assess whether the statute was a controlled substance offense or an aggravated felony. When applying the categorical approach, the Court is only allowed to examine the statute of conviction and not the particular facts of the case. After applying the categorical approach, the Second Circuit found the term “controlled substance” under New York Public Health Law includes a substance, chorionic gonadotropin, that is not a controlled substance under federal law. As a result, the Second Circuit ruled that, on June 21, 2017, NYPL 220.31 is not categorically a drug trafficking offense and the respondent was eligible to apply for asylum and cancellation of removal.
“This decision will have far-reaching effects on non-citizens who have been convicted of certain controlled substance offenses in New York,” Mr. Bretz said. “Non-citizens with controlled substance cases and convictions should consider revisiting their cases, including those who already received a removal order.”
Mr. Bretz recently gave a discussion at New York Law School about the review of notice to appear (NTA) and the charges and criminal grounds for removal. Among the topics he discussed were the burden of proof as to NTA charges, the legal challenges of NTA, common grounds of removability and answering the factual allegations on NTA, the issue of removability and designation of country for removal.
“This is a major victory for all lawful permanent residents (green card holders) who may be facing deportation,” Mr. Bretz said. “Those who may have been convicted of such offenses may not, in certain circumstances, need to be worried about being removed from the country.”
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