Waffi v. Mukasey , 285 F. App'x 26 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-2205
MUSTAFA WAFFI,
Petitioner,
v.
MICHAEL B. MUKASEY, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: June 18, 2008 Decided: July 3, 2008
Before GREGORY and DUNCAN, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Petition denied by unpublished per curiam opinion.
Thomas A. Elliot, Fabienne Chatain, Thomas H. Tousley, ELLIOT &
MAYOCK, Washington, D.C., for Petitioner. Gregory G. Katsas,
Acting Assistant Attorney General, David V. Bernal, Assistant
Director, Anthony P. Nicastro, Office of Immigration Litigation,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Mustafa Waffi, a native and citizen of Afghanistan,
petitions for review of an order of the Board of Immigration
Appeals (“Board”), finding he was removable and not eligible for
withholding from removal, and adopting and affirming the
immigration judge’s decision granting him deferral of removal to
Afghanistan under the Convention Against Torture. The only issue
in the petition for review is whether Waffi’s conviction under
Virginia law for taking indecent liberties with a child, Va. Code.
Ann. § 18.2-370 (Supp. 2007), was properly considered by the Board
to be sexual abuse of a minor. We deny the petition for review.
Although this court typically lacks jurisdiction over
petitions for review filed by criminal aliens such as Waffi, see 8
U.S.C.A. § 1252(a)(2)(C) (West 2005), we retain jurisdiction to
consider constitutional claims or questions of law raised in a
petition for review. § 1252(a)(2)(D); Mbea v. Gonzales, 482 F.3d
276, 278 n.1 (4th Cir. 2007).
We note the Board properly considered the question of
whether Waffi’s conviction could be considered sexual abuse of a
minor by using the categorical approach. Mbea, 482 F.3d at 279.
Under this approach, the court “look[s] only to the statutory
definition of the state crime and the fact of conviction to
determine whether the conduct criminalized by the statute,
including the most innocent conduct, qualifies as [sexual abuse of
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a minor].” United States v. Diaz-Ibarra, 522 F.3d 343, 348 (4th
Cir. 2008). We agree with the Board’s conclusion. We find the
Virginia statute can be considered sexual abuse of a minor under
the categorical approach because the statute entails “the
perpetrator’s physical or nonphysical misuse or maltreatment of a
minor for a purpose associated with sexual gratification.” Id. at
352 (internal quotation marks omitted).
Accordingly, we deny the petition for review. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and
argument would not aid the decisional process.
PETITION DENIED
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