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Second Circuit overreaches on drug trafficking aggravated felony ground

In Pascual v. Holder, 12-2798, 2d Cir. Feb. 19, 2013, the Second Circuit held that third degree criminal sale of a controlled substance in violation of New York Penal Law § 220.39(1) is categorically an aggravated felony. The Court considered and rejected the argument in the Fifth Circuit’s unpublished decision in Davila v. Holder, No. 08-60530, slip op. (5th Cir. June 15, 2010) that inclusion of “offer to sell” in the New York sale statute means that a conviction under the statute is not categorically a drug trafficking aggravated felony. IDP had been working with pro bono partner Gibson Dunn on a different case also raising this issue before the Second Circuit. We plan to submit an amicus brief in support Mr. Pascual’s Petition for Rehearing. Please stay tuned for more updates and analysis.

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