17‐3827 Andrews v. Barr BIA A036 706 672 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. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 22nd day of January, two thousand twenty. PRESENT: RALPH K. WINTER, PETER W. HALL, RICHARD J. SULLIVAN, Circuit Judges. _____________________________________ Churchill Leonard Spencer Andrews, AKA Churchill Lenard Andrews, Petitioner, v. 17‐3827 William P. Barr, United States Attorney General, Respondent. _____________________________________ FOR PETITIONER: DAVID A. SCHNITZER (David Debold, on the brief), Gibson, Dunn & Crutcher LLP, Washington, D.C. FOR RESPONDENT: RACHEL BROWNING, Trial Attorney, Office of Immigration Litigation, (Chad A. Readler, Acting Assistant Attorney General; Claire L. Workman, Senior Litigation Counsel, on the brief), United States Department of Justice, Washington, D.C. FOR AMICUS CURIAE: Trina Realmuto, Kristin Macleod‐Ball, American Immigration Council, Brookline, MA. UPON DUE CONSIDERATION of this petition for review of a Board of Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the petition for review is GRANTED. I. Petitioner Churchill Leonard Spencer Andrews, a native and citizen of Guyana, seeks review of an October 25, 2017, decision of the BIA denying his motion to reopen and reconsider. In re Churchill Leonard Spencer Andrews, No. A036 706 672 (B.I.A. Oct. 25, 2017). We assume the parties’ familiarity with the underlying facts and procedural history in this case. We held in Harbin v. Sessions that Andrews’s statute of conviction, fifth‐ degree criminal sale of a controlled substance under New York Penal Law 2 (“NYPL”) § 220.31, is not a drug trafficking aggravated felony as defined in 8 U.S.C. § 1101(a)(43)(B) because there was no categorical match between New York’s “controlled substance” offenses and federal controlled substance offenses given that New York drug schedules are broader than the federal schedules. 860 F.3d 58, 68 (2d Cir. 2017). Based on the reasoning in Harbin, NYPL § 220.31 is also not a removable controlled substance offense under 8 U.S.C. § 1227(a)(2)(B)(i) because that provision references the same federal drug schedules, 8 U.S.C. § 1101(a)(43)(B), at issue in Harbin. Because Andrews’s removal pre‐dated Harbin, the issue before us is whether the BIA abused its discretion by declining to reopen Andrews’s removal proceedings. As discussed below, we remand for further consideration of Andrews’s motion. II. We review the agency’s denial of a motion to reconsider or reopen for abuse of discretion. ...
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