In an unpublished decision in one of our clients’ cases, the BIA held that a conviction for criminal facilitation in New York does not constitute an illicit trafficking type of aggravated felony. INA § 237(a)(2)(C) and, after fighting it for several months, lost the controlled substances offense under INA § 237(a)(2)(B)(i). The IJ also determined that our client’s conviction for criminal facilitation, NY Penal § 115.00, constituted illicit trafficking under INA § 101(a)(43)(B), thus rendering him ineligible for Cancellation of Removal as an aggravated felon. We appealed the IJ’s determination that criminal facilitation constitutes illicit trafficking.
We first argued that the IJ erred by relying on an admission that our client made at his plea hearing. Upon questioning from the criminal court judge, our client essentially stated that he indirectly participated in the sale of crack cocaine. The IJ used this statement in the plea colloquy to determine that the criminal facilitation conviction constituted illicit trafficking because our client, in the IJ’s view, facilitated the sale of crack cocaine.
We argued that the IJ is required to use the categorical approach to statutory analysis when determining whether an offense constitutes an aggravated felony. Under the categorical approach, the IJ can only examine the elements of the statute of conviction—in this case criminal facilitation. New York’s criminal facilitation statute, NY Penal § 115.00, provides:
A person is guilty of criminal facilitation in the fourth degree when, believing it probable that he is rendering aid: 1. to a person who intends to commit a crime, he engages in conduct which provides such person with means or opportunity for the commission thereof and which in fact aids such person to commit a felony; or 2. to a person under sixteen years of age who intends to engage in conduct which would constitute a crime, he, being over eighteen years of age, engages in conduct which provides such person with means or opportunity for the commission thereof and which in fact aids suchperson to commit a crime.
The elements of § 115.00, we argued, do not in any way suggest illicit trafficking.
We then extended this position by arguing that even under the modified categorical approach, the IJ may only consider elements that the criminal court found our client actually violated. A short exchange between the criminal court judge and a criminal defendant, we argued, does not constitute a formal finding, especially when the exchange is not about an element of the statute under which the defendant was actually convicted.
Rather than grapple with this argument, the BIA avoided it entirely. “[W]e need not directly address these arguments,” the BIA wrote, “as we find that the Immigration Judge’s ruling must be reversed on a different basis.” Taylor, slip op. at 2.
Instead, the BIA relied on the low level of intent and participation required for a facilitation conviction. In United States v. Liranzo, the Second Circuit, addressing facilitation under NY Penal § 115.05, held that facilitation “involves conduct ‘in which the actor aids the commission of a crime with knowledge that he is doing so but without any specific intent to participate therein or to benefit therefrom.’” 944 F.2d 73 (2nd Cir. 1991) (quoting N.Y. Penal Law § 115.06, Practice Commentaries). The BIA then noted that the Liranzo Court was swayed by the New York Court of Appeals’ holding that a facilitator’s participation is “so attenuated from the final stages that the role of the facilitator is only remotely related as to cause or contributor to the ultimate crime.” Taylor, slip op. at 3 (quoting People v. Beaudet, 298 N.E.2d 647 (1973)).
Without much explanation, the BIA adopted the reasoning of the Liranzo and Beaudet courts: “Using a similar rationale, we conclude that the respondent’s conviction for New York criminal facilitation does not constitute a controlled substance offense and, a fortiori, does not constitute illicit trafficking in a controlled substance . . . .” Taylor, slip op. at 3. The BIA remanded for consideration of our client’s Cancellation application.