Jose Hernandez-Nolasco v. Loretta Lynch , 807 F.3d 95 ( 2015 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-2036
JOSE HERNANDEZ-NOLASCO,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
No. 14-2346
JOSE HERNANDEZ-NOLASCO,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petitions for Review of Orders of the Board of Immigration
Appeals.
Argued: October 28, 2015 Decided: December 4, 2015
Before WILKINSON, KEENAN, and THACKER, Circuit Judges.
Petitions for review dismissed in part and denied in part by
published opinion. Judge Keenan wrote the opinion, in which
Judge Wilkinson and Judge Thacker joined.
ARGUED: Mariam Masumi, JOHNSON & ASSOCIATES, P.C., Arlington,
Virginia, for Petitioner. Edward Earl Wiggers, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON
BRIEF: Randall L. Johnson, JOHNSON & ASSOCIATES, P.C.,
Arlington, Virginia, for Petitioner. Benjamin C. Mizer, Acting
Assistant Attorney General, Civil Division, Mary Jane Candaux,
Assistant Director, Office of Immigration Litigation, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
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BARBARA MILANO KEENAN, Circuit Judge:
Jose Hernandez-Nolasco, a native and citizen of Honduras,
petitions for review of: (1) a decision of the Board of
Immigration Appeals (BIA) ordering his removal from the United
States; and (2) the BIA decision denying his motion for
reconsideration. Hernandez-Nolasco argues in these consolidated
petitions that the BIA erred in affirming the ruling of an
immigration judge (IJ) that Hernandez-Nolasco had been convicted
of a “particularly serious crime,” which under the Immigration
and Nationality Act (INA), 8 U.S.C. § 1231(b)(3)(B), and under
the United Nations Convention Against Torture (CAT), see 8
C.F.R. § 1208.16(d)(2), rendered him ineligible for withholding
of removal. Hernandez-Nolasco also contends that the IJ erred
in concluding that he is not entitled to deferral of removal
under the CAT, 8 C.F.R. § 1208.17(a). We dismiss in part and
deny in part Hernandez-Nolasco’s petitions, because the IJ and
the BIA did not err in determining any questions of law, and we
lack jurisdiction to review the IJ’s underlying factual
findings.
I.
Hernandez-Nolasco is a 23-year-old citizen of Honduras. He
left Honduras and eventually entered the United States without
authorization in 2009, when he was 17 years of age.
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In 2012, Hernandez-Nolasco was indicted by a grand jury in
Fairfax County, Virginia, and charged with possession of cocaine
with the intent to distribute in violation of Virginia Code
§ 18.2-248. Hernandez-Nolasco entered a guilty plea to the
charge in the indictment, and was convicted and sentenced to a
five-year term of imprisonment, which the court suspended.
The Department of Homeland Security (DHS) later issued a
Notice of Intent to Issue a Final Administrative Removal Order
to Hernandez-Nolasco, who responded by requesting withholding
and deferral of removal. In an interview with an asylum
officer, Hernandez-Nolasco related that a gang leader had
murdered his father and brother in Honduras. Hernandez-Nolasco
further stated that he ultimately had left Honduras after having
been kidnapped and threatened by the same gang.
The asylum officer concluded that Hernandez-Nolasco’s
account was credible and that he had established a reasonable
fear of persecution if removed to Honduras. Accordingly, the
asylum officer referred Hernandez-Nolasco to an IJ for
“withholding only” proceedings to consider the limited question
whether Hernandez-Nolasco was entitled to withholding of removal
under the INA or the CAT, or deferral of removal under the CAT.
See 8 C.F.R. § 208.31(e) (describing “withholding-only”
proceedings).
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The IJ determined that Hernandez-Nolasco was not entitled
to relief under either the INA or the CAT. The IJ found that
Hernandez-Nolasco had been sentenced to a term of five years’
imprisonment for a drug trafficking crime, which constituted a
“particularly serious crime” barring him from withholding of
removal relief. The IJ found that Hernandez-Nolasco had not met
his evidentiary burden to establish that he would be subject to
torture, and that the government of Honduras would acquiesce in
such torture, if he were removed to Honduras. Accordingly, the
IJ ruled that Hernandez-Nolasco was not entitled to deferral of
removal under the CAT.
Hernandez-Nolasco appealed the IJ’s order to the BIA. The
BIA adopted and affirmed the IJ’s decision on the basis that the
IJ’s factual findings were not clearly erroneous, and that the
IJ’s legal conclusions were correct. Hernandez-Nolasco later
filed a motion for reconsideration, which the BIA denied.
Hernandez-Nolasco filed the present petitions for review with
this Court.
II.
We review questions of law arising from decisions of the
BIA de novo. Yanez-Marquez v. Lynch, 789 F.3d 434, 444 (4th
Cir. 2015). And when, as here, the BIA decision expressly has
adopted the underlying decision of the IJ, we review both
decisions. Id.
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Hernandez-Nolasco argues that the IJ and the BIA erred in
concluding that he was convicted of a “particularly serious
crime,” rendering him ineligible for relief under either the INA
or the CAT. He does not dispute that he was convicted of the
crime of possession with intent to distribute cocaine. Instead,
Hernandez-Nolasco contends that this crime of conviction was not
“particularly serious” within the contemplation of 8 U.S.C.
§ 1231(b)(3)(B)(ii) because the crime was not an “aggravated
felony.” See id. He also asserts that under the BIA decision
of In re Y-L-, 23 I. & N. Dec. 270, 273 (BIA 2002), his case
presents “unusual circumstances,” and that the IJ erred in
failing to receive evidence concerning this subject. According
to Hernandez-Nolasco, had the IJ done so, the IJ could have
weighed the exceptional factors discussed in In re Y-L-, and
considered the relevant facts that Hernandez-Nolasco had not
committed other crimes, and that he had acknowledged
responsibility for his single crime. We disagree with
Hernandez-Nolasco’s argument.
An alien is entitled to withholding of removal to a
particular country if the alien would be persecuted on return to
that country on account of his membership in a particular social
group. 8 U.S.C. § 1231(b)(3)(A). However, an alien who has
been convicted of a “particularly serious crime” and, thus, “is
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a danger to the community” is not eligible for withholding of
removal. Id. § 1231(b)(3)(B); 8 C.F.R. § 1208.16(d)(2).
As relevant here, any alien who has been convicted of an
“aggravated felony . . . for which the alien has been sentenced
to an aggregate term of imprisonment of at least 5 years”
automatically is deemed to have committed a “particularly
serious crime.” 8 U.S.C. § 1231(b)(3)(B); In re Y-L-, 23 I. &
N. Dec. at 273. The INA defines the term “aggravated felony” to
include “a drug trafficking crime.” 8 U.S.C. § 1101(a)(43)(B).
A drug trafficking offense committed in violation of state law
automatically qualifies as a “drug trafficking crime” under this
section if the defendant was convicted under a state statute
that proscribes conduct necessarily punishable as a felony under
the Controlled Substances Act (CSA), 21 U.S.C. § 801 et seq.
See 18 U.S.C. § 924(c)(2); Moncrieffe v. Holder, 133 S. Ct.
1678, 1684–85 (2013). Therefore, if an alien is convicted of a
state crime that necessarily would constitute a felony under the
CSA, the alien’s crime of conviction qualifies as an “aggravated
felony.”
Hernandez-Nolasco concedes that he was charged with and
convicted of possession with intent to distribute cocaine.
Under the CSA, when the controlled substance involved in an
offense is cocaine, possession with intent to distribute that
substance always is punishable as a felony. 21 U.S.C. §§
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841(a), 841(b)(1)(C); 21 C.F.R. § 1308.12. Therefore,
Hernandez-Nolasco’s crime of conviction qualifies as an
“aggravated felony” under the INA. See Moncrieffe, 133 S. Ct.
at 1686.
This “aggravated felony” conviction, for which Hernandez-
Nolasco received a sentence of five years’ imprisonment, is per
se a “particularly serious crime” under 8 U.S.C.
§ 1231(b)(3)(B). See Gao v. Holder, 595 F.3d 549, 555 (4th Cir.
2010). Thus, the “unusual circumstances” discussed in In re Y-
L-, which may be considered when the sentence imposed for an
aggravated felony is less than five years, are irrelevant to the
present case. See In re Y-L-, 23 I. & N. Dec. at 273–74.
Accordingly, we hold that the IJ and the BIA did not err in
determining that Hernandez-Nolasco was convicted of a
“particularly serious crime” rendering him ineligible for
withholding of removal under the INA and the CAT. See 8 U.S.C.
§ 1231(b)(3)(B); 8 C.F.R. § 1208.16(d)(2). For the same reason,
we further hold that the BIA did not abuse its discretion in
denying Hernandez-Nolasco’s motion for reconsideration of its
ruling. See Jean v. Gonzales, 435 F.3d 475, 483 (4th Cir. 2006)
(affirming a BIA denial of a motion to reconsider when the BIA
provided a rational explanation for its decision).
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III.
We do not reach the merits of Hernandez-Nolasco’s argument
that the IJ and the BIA erred in concluding that he failed to
meet his evidentiary burden to establish that he qualifies for
deferral of removal under the CAT. The INA limits our
jurisdiction over final orders of removal involving convictions
“relating to a controlled substance.” 8 U.S.C.
§§ 1182(a)(2)(A)(i)(II), 1252(a)(2)(C). In such cases, we have
jurisdiction only to review “constitutional claims or questions
of law.” 8 U.S.C. § 1252(a)(2)(D). Because Hernandez-Nolasco
was convicted of a state crime involving a controlled substance,
we lack jurisdiction to review questions of fact underlying the
present order denying him deferral of removal. In particular,
Hernandez-Nolasco’s argument that he is likely to be tortured
upon return to Honduras raises a purely factual question. See
Saintha v. Mukasey, 516 F.3d 243, 249–50 (4th Cir. 2008).
Accordingly, we do not have jurisdiction to consider the merits
of his claim for deferral of removal under the CAT.
IV.
For these reasons, we dismiss in part, and deny in part,
Hernandez-Nolasco’s petitions for review.
PETITIONS FOR REVIEW DISMISSED
IN PART AND DENIED IN PART
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