Introduction

On June 21, 2017, the United States Court of Appeals for the Second Circuit published a precedential decision in Harbin v. Sessions, 860 F.3d 58 (2d Cir. 2017) [PDF version]. The decision was authored by Judge Rosemary S. Pooler. The Second Circuit held that a conviction for criminal sale of a controlled substance in the fifth degree under New York Penal Law (NYPL) section 220.31 is not an aggravated felony trafficking in controlled substances offense under section 101(a)(43)(B) of the Immigration and Nationality Act (INA). The Second Circuit reached this conclusion after determining that NYPL 220.31 is not divisible with respect to the controlled substance being trafficked and that the New York statutes contain at least one controlled substance that is not in the Federal schedules, thus making NYPL 220.31 categorically overbroad.

In this article, we will examine the factual and procedural history of Harbin v. Sessions, the Second Circuit’s analysis and conclusions, and what the decision means going forward.

Factual and Procedural History

The petitioner, Kennard Garvin Harbin, a native and citizen of Grenada, was admitted to the United States as a lawful permanent resident in 1978.

In 1991, Harbin was convicted of felony criminal sale of a controlled substance in the fifth degree under NYPL 220.31. His certificate of disposition stated that the controlled substance in question was cocaine. No deportation or removal proceedings were initiated on the basis of this conviction.

In January of 2012, Harbin was arrested for disorderly conduct. After this arrest, the Department of Homeland Security (DHS) charged Harbin as removable under section 237(a)(2)(A)(ii) of the INA for having been convicted of multiple crimes involving moral turpitude. This removal charge was not based on Harbin’s 1991 sale of a controlled substance conviction.

Harbin does not appear to have contested his underlying removability before the immigration judge. Instead, he sought relief from removal in the forms of cancellation of removal, asylum, withholding of removal, and protection under the Convention Against Torture (CAT). These claims were based largely on Harbin’s suffering from schizophrenia and bipolar disorder and that Grenada had inadequate mental health services.

The immigration judge denied all of Harbin’s claims for relief and protection and ordered him removed. First, the immigration judge ruled that Harbin’s 1991 conviction in violation of NYPL 220.31 was an aggravated felony under 101(a)(43)(B) of the INA, thereby barring him from receiving cancellation of removal (INA 240A(a)(3)) and asylum (INA 208(b)(2)(A)(ii)). The Immigration Judge held that Harbin did not sustain his burden of establishing eligibility for withholding of removal or protection under CAT.

On appeal, the Board of Immigration Appeals (BIA) agreed with the immigration judge that Harbin’s 1991 conviction in violation of NYPL 220.31 was an aggravated felony and thus barred him from cancellation of removal and asylum. The Board also agreed that Harbin had not demonstrated that he was more likely than not to be persecuted or tortured in Grenada, thus failing to establish eligibility for withholding of removal or CAT protection. Accordingly, the Board dismissed Harbin’s appeal.

Harbin appealed from the Board’s decision to the Second Circuit.

Arguments on Appeal

Harbin made two arguments on appeal:

1. His conviction for NYPL 220.31 was not an aggravated felony under section 101(a)(43)(B) of the INA because New York’s schedule of controlled substances is broader than the federal schedules. As a consequence, he argued that he should not have been barred from cancellation of removal and asylum.
2. He argued that the BIA improperly bifurcated his social group into two categories when considering his claims for withholding of removal and protection under CAT. On this basis, he argued that he was entitled to a new hearing on remand.

In discussing the case, we will follow the Second Circuit in focusing primarily on Harbin’s first argument.

Question and Significance of Whether the Statute of Conviction Was Divisible

Under section 101(a)(43)(B)( of the INA, “illicit trafficking in a controlled substance (as defined in [18 U.S.C. 21], including a drug trafficking crime (as defined in [18 U.S.C. 924(c)])” is an aggravated felony. Notably, the controlled substance involved must be on the federal controlled substance schedules.

The following is the text of NYPL 220.31, the statute of conviction in the instant case:

A person is guilty of criminal sale of a controlled substance in the fifth degree when he knowingly and unlawfully sells a controlled substance. Criminal sale of a controlled substance in the fifth degree is an aggravated felony.

The term “controlled substance” under New York law is defined in NYPL 220.00(5) as “any substance listed in schedule I, II, III, IV, or V of section thirty-three hundred six of the public health law other than [marijuana], but including concentrated cannabis as defined in paragraph (a) of subdivision four of section thirty-three hundred two of such law.”

The question for the Second Circuit was whether NYPL 220.31 was “divisible” with regard to the statute of conviction. Under Mathis v. United States, 136 S.Ct. 2243, 2249 (2016), which we discuss in a full article [see article], a “divisible” statute lists elements in the alternative, thus meaning that each alternative element constitutes an individual crime. An element can be thought of as something that is necessary to prove in order to sustain a conviction. However, some statutes list alternative means of committing a single crime rather than alternative elements. In this case, the same single crime can be committed in different ways and the specific means of commission does not need to be established.

If the statute is not divisible, than the court must apply what is called the “categorical approach.” Under the categorical approach [see index], the pertinent question is whether any possible conviction under the statute would be an aggravated felony trafficking offense. This approach looks only to the language of the statute and not at the underlying facts of the crime. Moncrieffe v. Holder, 133 S.Ct. 1678, 1684 (2013) [PDF version]. However, were the statute to be divisible, then the court would apply the modified categorical approach. Under this approach, the court would determine which alternative element of the statute the alien was convicted under and whether that conviction was an aggravated felony trafficking offense.

Because New York’s drug schedules include at least one substance that is not on the federal drug schedules, the question of whether the statute was divisible with respect to the controlled substance involved was significant, and decisive for the Second Circuit panel. In a similar situation in Mellouli v. Lynch, 135 S.Ct. 1980, 1986 (2015) [see article], the Supreme Court wrote that “the adjudicator must presume that the conviction rested upon nothing more than the least of the acts criminalized…”

Second Circuit Determines That NYPL 220.31 Is Not Divisible

The Second Circuit stated that the text of NYPL 220.31 “suggests that it creates only a single crime, but provides a number of different factual means by which that crime may be committed.” It noted that the statute itself criminalized the sale of a “controlled substance.” While it incorporated the New York controlled substance schedules, the Second Circuit wrote that “it provides no indication that the sale of each substance is a distinct offense.” To that effect, the Second Circuit added that there was no suggestion that jury unanimity with respect to the substance involved was necessary for a conviction. For example, it wrote that “If some jurors believed that a defendant had sold cocaine, and others believed that he had sold heroin, they could still agree that he had solid ‘a controlled substance,’ and issue a guilty verdict.”

The Second Circuit added that its above reading was “consistent with the law’s penalty provisions, which prescribe the same narrow range of penalties for violations of NYPL 220.31 no matter which controlled substance a defendant has sold.” In other words, provided that an individual is convicted of violating NYPL 220.31, the possible sentences that could be imposed are the same regardless of which substance(s) he or she actually sold. In Mathis, 136 S.Ct. at 2256, the Supreme Court wrote that “if statutory alternatives carry different punishments … they must be elements.” The Second Circuit inferred from the language of NYPL 220.31 that because “NYPL 220.31 carries the same penalties for each violation,” it is “in line with our reading of 220.31: that each controlled substance is a mere ‘means’ of violating the statute, not a separate alternative element.”

The Government offered several arguments in favor of the proposition that NYPL 220.31 is divisible, all of which the Second Circuit ultimately found to be unpersuasive.

The Government’s first argument was that the incorporation of New York drug schedules into NYPL 220.31 rendered the statute divisible. For support, it referenced the precedent decisions of the United States Court of Appeals for the Ninth Circuit in Coronado v. Holder, 759 F.3d 977, 984-85 (9th Cir. 2014) [PDF version], and of the United States Court of Appeals for the Fifth Circuit in United States v. Gomez-Alvarez, 781 F.3d 787, 792 (5th Cir. 2015) [PDF version]. In both cases, the Ninth and Fifth Circuits found that a California drug statute that incorporated California’s drug schedules was divisible. However, the Second Circuit noted that those decisions relied on California’s statutory scheme “and are therefore inapposite to our analysis of New York law.”

The Government cited to several New York state court decisions to buttress its position that NYPL 220.31 is divisible. First, it relied on decisions such as People v. Kalin, 12 NY.3d 225, 230-32 (2009), wherein a New York appellate court held that prosecutors must describe the particular substances involved. However, the Second Circuit held that “the values of fair notice and avoidance of double jeopardy often demand that the government specify accusations in ways unrelated to a crime’s elements.” For example, it stated that in a murder case prosecutors may need to specify who the defendant allegedly murdered, the specific identity of the victim is not an element of the offense. The Second Circuit was also unpersuaded by the Government’s reliance on People v. Douglas, 807 N.Y.S.2d 393, 394 (2d Dep’t 2005), which held that the “prosecutor must put forth ‘reasonable assurances of the identity’ of the specific controlled substance charged.” The Second Circuit held that Douglas and other similar cases “relate to establishment of the chain of custody for evidentiary purposes.”

Contrary to the Government’s position, the Second Circuit found that several New York appellate court decisions suggested that they did not view NYPL 220.31 as being divisible. The Second Circuit explained that state courts “have considered NYPL 220.16(1), a statute comparable to NYPL 220.31 except that it deals with possession instead of sale-and deals with possession of narcotics in particular.” In People v. Miller, 15 A.D.3d 265 (1st Dep’t 2005), the First Department held that a defendant was improperly convicted of two separate possession counts “based on his possession of a single bag containing both cocaine and heroin.” In People v. Martin, 153 A.D.2d 807 (1st Dep’t 1989), the First Department held that NYPL 220.16(1) “does not distinguish between the types of narcotics possessed, but treats all drugs classified as narcotics interchangeably.”

Alternatively, the Government relied on New York’s Pattern Jury Instructions to show that NYPL 220.31 is divisible. The Second Circuit noted that “The Supreme Court’s opinion in Mathis strongly suggests that we should consult jury instructions only when we are otherwise uncertain regarding the state law’s meaning, and there is no uncertainty as to NYPL 220.31.” For this reason, the Second Circuit found the Government’s reliance “unwarranted.” Nevertheless, it surveyed New York’s Pattern Jury Instructions and concluded that NYPL 220.31 does not treat the sale of each substance covered in the New York controlled substances schedules as a distinct crime. The jury instructions do allow for room for a judge to specify the substance alleged to have been sold. However, the Second Circuit found that judges are not barred from specifying more than one substance. Furthermore, while a judge could ask jurors to choose whether they believe a defendant sold one sentence or another, “the statute does not create separate crimes-it creates separate means of committing the same crime.”

For these reasons, the Second Circuit opted to apply the categorical approach.

Applying the Categorical Approach to NYPL 220.31

In Mellouli, 135 S.Ct. at 1986, the Supreme Court held that “the [categorical] approach looks to the statutory definition of the offense of conviction, not to the particulars of an [individual’s] behavior.” Furthermore, “An alien’s actual conduct is irrelevant to the inquiry, as the adjudicator must ‘presume that the conviction rested upon nothing more than the least of the acts criminalized’ under the state statute.” As applied to the instant case, the categorical inquiry restricted the Second Circuit to only comparing the language of the statute of conviction — NYPL 220.31 — with the language of the aggravated felony provision for trafficking in controlled substances — section 101(a)(43)(B) of the INA. In determining whether the statutes were a categorical match, the question was whether every possible means of violating NYPL 220.31 fell within the scope of section 101(a)(43)(B). As the Supreme Court explained in Moncrieffe, 133 S.Ct. at 1685, the “state drug offense must … ‘necessarily’ proscribe conduct under the [Federal Controlled Substances Act].”

The Second Circuit found that NYPL 220.31 incorporates at least one substance that is not included in the Federal schedules. N.Y. Pub. Health Law 3306, which lists the drug schedules underlying NYPL 220.31, includes a substance called chorionic gonadotropin as a controlled substance. Chorionic gonadotropin is not a controlled substance under Federal law. Thus, the Second Circuit concluded that because NYPL 220.31 can punish the sale of at least one controlled substance that is not covered under the Federal Controlled Substances Act, it is not an aggravated felony under section 101(a)(43)(B). Accordingly, the Second Circuit ruled that the BIA erred in finding Harbin ineligible for asylum or cancellation of removal.

Separate Issues

The Second Circuit rejected Harbin’s challenges to the BIA’s decision to deny his applications for withholding of removal and protecting against CAT, describing them as “merely quarrels with the agency’s evaluation of the likelihood of harm arising from his status as a mentally-ill deportee” rather than as grounds to overrule the BIA’s decision.

Other Decisions on NYPL 220.31 and Interpreting Harbin

In decisions prior to Mellouli, the Second Circuit took a different position on NYPL 220.31. For example, in an unpublished decision titled Andrews v. Holder, 534 Fed.Appx. 32 (2d Cir. 2013), the Second Circuit held that a conviction under NYPL 220.31 is categorically an aggravated felony drug trafficking offense. This earlier decision highlights the importance of intervening Supreme Court decisions in changing the Second Circuit’s position on the issue. See also U.S. v. Hernandez-De Aza, 536 Fed.Appx. 404 (5th Cir. 2013), wherein the Fifth Circuit held that a District Court’s conclusion that NYPL 220.13 was a drug trafficking offense was not plain error.

In an unpublished decision titled IN Re: IIankel Ortega, 2017 WL 8785854 (BIA Dec. 1, 2017), the Board held that Harbin bound it to conclude that NYPL 220.03 is not a categorical match to the removability provision in section 237(a)(2)(B)(i) for controlled substances offenses because it references the same statute as NYPL 220.31.

However, at least one circuit court has disagreed with the Second Circuit’s new decision in Harbin. In an unpublished decision titled Morey v. Attorney General United States, 722 Fed.Appx. 239 (3d Cir. 2018), the Third Circuit disagreed with the result Harbin and concluded that section 220.31 is categorically an aggravated felony under section 101(a)(43)(B) of the INA. The Third Circuit assumed, without deciding, that NYPL 220.31 is not divisible. However, it employed the realistic probability test to assess the actual probability that an individual would be convicted for sale of a controlled substance not included in the Controlled Substances Act. The Third Circuit noted that the petitioner “did not cite any New York case where an individual has been prosecuted for selling chorionic gonadotropin, nor have we been able to identify one.” For this reason, the Third Circuit concluded that there was not a realistic probability that NYPL 220.31 would be used to prosecute sale of chorionic gonadotropin, and thus that it was categorically an aggravated felony controlled substances trafficking offense.

In Henriquez v. Sessions, 890 F.3d 70 (2d Cir. 2018) [PDF version] [see article], the Second Circuit distinguished its result in Harbin from a challenge to a removal order which was based on NYPL 220.06 (a criminal possession statute). In that case, the Second Circuit held that NYPL 220.06 was divisible with respect to the particular controlled substance.

We discuss the jurisdiction of the various Federal circuit courts in a separate article [see article].

Conclusion

The Harbin v. Sessions decision provides an important rule for NYPL 220.31 convictions within the jurisdiction of the Second Circuit — which encompasses New York, Connecticut, and Vermont. Under Harbin, a conviction in violation of NYPL 220.31 is not a controlled substances trafficking offense under section 101(a)(43)(B). Furthermore, it likely calls into question whether NYPL 220.31 can form the basis of removal or inadmissibility charges under other INA provisions which incorporate the Federal drug schedules in cases arising in the jurisdiction of the Second Circuit (see e.g., IN RE; Iankel Ortega).

However, the Harbin decision has limits. Firstly, in at least one unpublished decision, the Third Circuit disagreed with Harbin. Although most NYPL 220.31 cases will likely arise within the jurisdiction of the Second Circuit, many may also arise in the Third — which covers Delaware, New Jersey, and Pennsylvania. Furthermore, as we noted with our reference to a 2013 Fifth Circuit decision on NYPL 220.31, these cases may arise in other jurisdictions that have not yet weighed in on the Second Circuit’s rule. Furthermore, as the Second Circuit made clear in its Henriquez decision, its concluding that NYPL 220.31 is not divisible with respect to the particular controlled substance does not necessarily mean that other New York controlled substances laws are not divisible.

An alien with any drug conviction should consult with an experienced immigration attorney for guidance on how it may bear on his or her immigration status. This is especially important where the alien has been placed in removal proceedings. Whether Harbin may apply to a case arising in the jurisdiction of the Second Circuit — or constitute persuasive guidance outside of the Second Circuit — will depend on the facts of the particular case.

To learn more about trafficking in controlled substances and immigration law, please see our full article [see article]. To learn about related issues more generally, please see our website’s growing sections on criminal aliens [see category], removal and deportation defense [see article], and asylum and refugee protection [see article].