NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________ No. 20-2105 ______________ JOSE ARCENIO ARISTY-ROSA, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA ______________ On Petition for Review of a Decision of the Board of Immigration Appeals (Agency No. A043-907-039) Immigration Judge: John P. Ellington ______________ Submitted under Third Circuit L.A.R. 34.1(a) March 15, 2021 ______________ Before: SHWARTZ, PORTER, and MATEY, Circuit Judges. (Filed: March 16, 2021) ______________ OPINION ______________ This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. SHWARTZ, Circuit Judge. Jose Arcenio Aristy-Rosa petitions for review of a decision of the Board of Immigration Appeals (“BIA”) affirming the decision of the Immigration Judge (“IJ”) denying his motion to sua sponte reopen and terminate removal proceedings. Aristy- Rosa received a full and unconditional gubernatorial pardon, and he asserts that it extinguished the basis for his removal. He is incorrect and we will therefore deny the petition. I Aristy-Rosa, a native and citizen of the Dominican Republic, was admitted to the United States in January 1993 as a lawful permanent resident. Several years later, he was convicted of attempted criminal sale of a controlled substance, cocaine, in violation of New York state law. He was sentenced to five years’ probation and a six-month suspension of his driver’s license. Thereafter, Aristy-Rosa received a Notice to Appear (“NTA”) in the Immigration Court. The NTA charged Aristy-Rosa with being subject to removal under Section 237 of the Immigration and Nationality Act (“INA”) for three reasons: (1) he had committed a crime relating to a controlled substance, in violation of 8 U.S.C. § 1227(a)(2)(B)(i); (2) his controlled substances conviction constituted an aggravated felony, in violation of 8 U.S.C. § 1227(a)(2)(A)(iii); and (3) he was an alien who was inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(II) at the time of his application for adjustment of status, in violation of 8 U.S.C. § 1227(a)(1)(A). 2 Aristy-Rosa conceded removability under 8 U.S.C. §§ 1227(a)(2)(A)(iii) and (a)(2)(B)(i) and sought no relief from removal. An IJ ordered Aristy-Rosa removed on these grounds, and Aristy-Rosa did not appeal that order. Aristy-Rosa later filed two motions to reopen his removal proceedings to apply for adjustment of status and other relief, both of which were denied. In December 2017, New York Governor Andrew Cuomo fully and unconditionally pardoned Aristy-Rosa for his controlled substance conviction. Aristy- Rosa then moved to sua sponte reopen his removal proceedings,1 arguing that the pardon eliminated the basis for his removal. The IJ denied the motion, reasoning that it was time- and number-barred and that, under the plain text of the INA, a pardon fails to extinguish the basis for removal where the underlying conviction was for a controlled substance offense. Aristy-Rosa appealed this decision to the BIA. The BIA dismissed the appeal. It concluded that Aristy-Rosa’s argument was foreclosed by In re Suh, 23 I. & N. Dec. 626 (B.I.A. 2003), which held that certain “removable offenses, such as controlled substance violations under …
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals