Rinaldo Serge FLEURY, Petitioner, v. Loretta E. LYNCH, United States Attorney General, Respondent, 605 F. App'x 65

SUMMARY ORDER UPON DUE CONSIDERATION of this petition for review of a Board of Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the petition for review is DENIED. Petitioner Rinaldo Serge Fleury, a native and citizen of Haiti, seeks review of a December 19, 2013, decision of the BIA denying his motion to reconsider. In re Rinaldo Serge Fleury, No. [ AXXX XXX XXX ] (B.I.A. Dec. 19, 2013). We assume the parties’ familiarity with the underlying facts and procedural history in this case.

Our review is limited to constitutional claims and questions of law challenging the BIA’s December 2013 decision denying Fleury’s motion to reconsider. 8 U.S.C. § 1252(a)(2)(C), (D); cf. Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 89-90 (2d Cir.2001). Fleury raises two questions of law. First, Fleury argues that the BIA erred as a matter of law when it held that any lawful permanent resident (“LPR”) convicted of an aggravated felony after obtaining that status is barred from seeking a waiver of inadmissibility under Immigration and Nationality Act (“INA”) § 212(h), 8 U.S.C. § 1182(h). Fleury is correct.

Our recent opinion in Husic v. Holder, 776 F.3d 59 (2d Cir.2015), holds that an alien with an aggravated felony conviction is eligible to seek a waiver of inadmissibility under INA § 212(

h) if the alien was admitted to the United States in some non-LPR status and later adjusted to LPR status before being convicted of an aggravated felony. Husic, 776 F.3d at 66. However, Husic is irrelevant because Fleury’s second argument fails. Fleury’s controlled substance conviction may not be waived under § 212(h). One of the grounds of inadmissibility applicable to Fleury — an offense related to a controlled substance, 8 U.S.C. § 1182(a)(2)(A)(i)(II)— may be waived only if it is “a single offense of simple possession of 30 grams or less of marijuana.” 8 U.S.C. §. 1182(h).

However, in January 2009 Fleury was convicted of possession of narcotics under Connecticut General Statutes § 21a~279(a), in addition to possession of marijuana. Fleury’s conviction for possession of narcotics does not fall under the exception for possession of 30 grams or less of marijuana. Fleury, relying on Moncrieffe v. Holder, — U.S.-, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013), argues that his narcotics conviction is not categorically a controlled substance offense.

As the Government argues, Fleury did not exhaust this argument because he failed to raise it before the BIA in his motion to reconsider, and the denial of reconsideration is the only ruling properly before this Court. Ke Zhen Zhao, 265 F.3d at 89-90. Accordingly, we decline to reach the issue, as exhaustion is a prerequisite to our review. Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 123 (2d Cir.2007). For the foregoing reasons, the petition for review is DENIED.

As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Sec-' ond Circuit Local Rule 34.1(b).