Eli Almanzar Morey v. Attorney General United States

NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________ No. 17-1499 _______________ ELI ALMANZAR MOREY, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA, Respondent _______________ On Petition for Review of an Order of the Board of Immigration Appeals (A045-382-117) Immigration Judge: Dorothy Harbeck _______________ Submitted Under Third Circuit L.A.R. 34.1(a) November 17, 2017 Before: VANASKIE, SHWARTZ, and FUENTES, Circuit Judges (Opinion Filed: February 2, 2018) _______________ OPINION _______________ FUENTES, Circuit Judge. Petitioner Eli Almanzar Morey is a national of the Dominican Republic. He was initially admitted to the United States in April 1996 as a Conditional Permanent Resident  This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. and became a Lawful Permanent Resident in September 2010. In 2010, Morey was convicted of 5th Degree Criminal Sale of a Controlled Substance in New York state court in violation of New York Penal Law § 220.31. After a period outside the country, Morey arrived at Newark Liberty International Airport on March 17, 2015. At that time, he applied for admission as a returning Lawful Permanent Resident. Morey was denied entry and two days later was served with a Notice to Appear by the Department of Homeland Security charging him as removable.1 These charges were based on Morey’s 2010 New York drug conviction. The Immigration Judge, in a written decision, determined that Morey’s conviction “renders him inadmissible and he is removable under INA § 212(a)(2)(A)(i)(II)”2 and denied his application for cancellation of removal.3 In her decision, the Judge determined that § 220.31 was divisible and that because the specific drug Morey sold—heroin—is a controlled substance under both New York and federal law, this conviction bars him from admission and requires his removal. Morey appealed to the Board of Immigration Appeals (the “Board”) on only the determination of his removability.4 The Board affirmed, agreeing that the statute is divisible and that the Immigration Judge properly applied the modified categorical approach. It also dismissed Morey’s argument that the New York statute is more broad than the federal statute because it criminalizes at least one more drug. The Board 1 See 8 U.S.C. §§ 1182(a)(2)(A)(i)(II) and 1182(a)(2)(C). 2 INA §§ 212(a)(2)(A)(i)(II) is codified in the United States Code at 8 U.S.C. § 1182(a)(2)(A)(i)(II). 3 A.R. 30. 4 Morey Br. at 5. 2 determined this argument was foreclosed by its ruling in Matter of Ferreira.5 In Ferreira, the Board held that where a state statute seems on its face to cover a controlled substance that the federal list does not, there must be a “realistic probability” that the state actually prosecutes conduct falling outside the federal generic crime.6 The Board noted that Morey had not shown such a realistic probability and, thus, the New York statute could be considered a categorical match for the federal statute. Morey now petitions us for review of the final Board decision that he is inadmissible. He presents two issues for our review: (1) whether ...

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