U.S. v. Gibson: Sample Motion to Reconsider and Reopen

NEW DEVELOPMENT!

September 2023

The Second Circuit has now decided in U.S. v. Minter that certain “narcotic drug” and “cocaine” convictions from 1978-present are categorically overbroad relative to the federal Controlled Substances Act. IDP has provided resources about the Minter decision here. These resources are up-to-date and in many cases replace the below resources about the U.S. v. Gibson decision.

February 2023

IDP releases sample motion to help non-citizens in wake of the Second Circuit decision United States v. Gibson

On February 21, the Second Circuit issued its final decision in United States v. Gibson, 60 F.4th 720 (2d Cir. 2023) clarifying that it’s prior decision in the case, issued on December 6, 2022, in fact held that New York’s definition of “narcotic” is overbroad as of January 23, 2015 when naloxegol, an opiate derivative, was removed from the federal schedules. The government had tried to argue that the finding was dictum, but the circuit rejected that argument and made clear that was a precedential holding. This is a huge win!

Therefore, convictions under certain New York drug statutes should no longer be found to be controlled substance offenses or drug trafficking aggravated felonies for any conviction dated after the descheduling of naloxegol on January 23, 2015. This applies to Article 220 controlled substance offenses that involve a “narcotic drug” element. A list of those statutes is included below.

For any noncitizen who already has a final order of removal that is affected by this decision, the statutory deadline for a motion to reconsider is March 23, 2023, subject to equitable tolling. This is because it would be considered a motion to reconsider for change in law (30 day deadline) as opposed to a motion to reopen for new evidence (90 day deadline).

Sample Motion to Reconsider and Reopen/Terminate

IDP has created a draft motion to reconsider and reopen/terminate, which we hope helps with the time-sensitive nature of the deadline. Any subscribers to the IDP chart for determining the immigration consequences of New York offenses will also receive a practice note regarding Gibson.

Download Sample Motion

Finally, Gibson leaves the overbreadth of pre-2015 New York narcotics convictions unanswered. There are other cases pending at the circuit that should decide the issue, and IDP will advise when there are further updates.

Any questions regarding these issues can be directed to [email protected].

New York Penal Law Article 220 statutes involving a “narcotic drug” element:

  • 220.09(1) (criminal possession of a controlled substance in the fourth degree, sub 1)
  • 220.16(1)&(12) (criminal possession of a controlled substance in the third degree, subs 1 & 12)
  • 220.18(1) (criminal possession of a controlled substance in the second degree, sub 1)
  • 220.21(1) (criminal possession of a controlled substance in the first degree, sub 1)
  • 220.39(1) (criminal sale of a controlled substance in the third degree, sub 1)
  • 220.41(1) (criminal sale of a controlled substance in the second degree, sub 1)
  • 220.43(1) (criminal sale of a controlled substance in the first degree, sub 1)
  • 220.44(2)&(4) (if underlying offense is in violation of NYPL §220.39(1)) (criminal sale of a controlled substance in or near school grounds, subs 2 & 4, if underlying offense is in violation of criminal sale of a controlled substance in the third degree, sub 1)
  • 220.46 (criminal injection of narcotic drug)
  • 220.50 (criminally using drug paraphernalia in the second degree)
  • 220.77(2) & (3) (sale or possession with intent to sell $75,000 worth of narcotic drug)