Prabhudial v. Holder, No. 14-4574 (2d Cir. 2015)
Annotate this CasePrabhudial was admitted to the U.S. as a legal permanent resident in 1983. In 2012, he was placed in removal proceedings under 8 U.S.C. 1227(a)(2)(A)(iii), (A)(2)(B)(i), based on New York convictions: two for seventh‐degree possession of a controlled substance, N.Y. Penal L. 220.03, and one for fifth‐degree sale of a controlled substance, N.Y. Penal L. 220.31. The BIA initially affirmed an order of removal, but reopened after Prabhudial‘s sale conviction was vacated. An IJ granted relief. About a year later, after the previously vacated sale conviction was reinstated, Prabhudial was served with a second Notice to Appear. Rejecting Prabhudual’s claim that a case pending before the New York Court of Appeals, if decided favorably, would give him grounds to again seek vacatur of his conviction, the IJ ruled that the sale conviction was an aggravated felony, and sustained charges of removability. On appeal, the BIA held that Prabhudial had waived an argument that the Supreme Court’s 2013 decision, Descamps v. United States, prohibited the agency from using the modified categorical approach to determine whether his sale conviction was an aggravated felony. The Second Circuit dismissed: the BIA may apply the doctrine of waiver to matters not raised before an IJ.
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