Xu Pei Gao v. Holder ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-2333
XU PEI GAO,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: June 8, 2010 Decided: August 20, 2010
Before GREGORY, DAVIS, and KEENAN, Circuit Judges.
Petition dismissed in part and denied in part by unpublished per
curiam opinion.
Xu Pei Gao, Petitioner Pro Se. Brianne Whelan Cohen, 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Unpublished opinions are not binding precedent in this circuit.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:
Xu Pei Gao, a native and citizen of the People’s
Republic of China, petitions for review of an order of the Board
of Immigration Appeals (“Board”) dismissing his appeal from the
immigration judge’s denial of his motion to reopen. For the
reasons discussed below, we dismiss the petition for review in
part and deny the petition for review in part.
Pursuant to 8 U.S.C. § 1252(a)(2)(C) (2006), we lack
jurisdiction, except as provided in 8 U.S.C. § 1252(a)(2)(D)
(2006), to review the final order of removal of an alien who is
removable for having been convicted of certain enumerated
crimes, including a firearms offense. Because Gao was found
removable for having been convicted of a firearms offense, under
§ 1252(a)(2)(C), we have jurisdiction only “to review factual
determinations that trigger the jurisdiction-stripping
provision, such as whether [Gao] [i]s an alien and whether []he
has been convicted of [a firearms offense].” Ramtulla v.
Ashcroft, 301 F.3d 202, 203 (4th Cir. 2002). Once we confirm
these two factual determinations, then, under 8 U.S.C.
§ 1252(a)(2)(C), (D), we can only consider “constitutional
claims or questions of law.” See Mbea v. Gonzales, 482 F.3d
276, 278 n.1 (4th Cir. 2007). Based on our review of the
record, we find that Gao is indeed an alien who has been
convicted of a firearms offense, and § 1252(a)(2)(C) divests us
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of jurisdiction over the petition for review absent a colorable
constitutional claim or question of law.
Gao first challenges the finding that he was convicted
of an aggravated felony – a finding that rendered him ineligible
for asylum and withholding of removal. We have jurisdiction to
review this question of law. See Mbea, 482 F.3d at 279. Based
on our review of the record, we find that Gao’s conviction under
Virginia law for robbery constituted a “crime of violence” as
defined in 18 U.S.C. § 16 (2006), and was therefore an
aggravated felony. See 8 U.S.C. § 1101(a)(43)(F) (2006);
Williams v. Virginia, 685 S.E.2d 178, 180 (Va. 2009) (defining
robbery as “the taking, with intent to steal, of the personal
property of another, from his person or in his presence, against
his will, by violence or intimidation”) (emphasis added).
Because Gao was convicted of an aggravated felony for which he
was sentenced to a term of more than five years, we agree that
he was convicted of a “particularly serious crime” for both
asylum and withholding of removal purposes. See 8 U.S.C.
§§ 1158(b)(2)(B)(i), 1231(b)(3)(B)(iv) (2006). We therefore
find that the Board correctly determined that Gao’s robbery
conviction rendered him ineligible for asylum and withholding of
removal under both the INA and the Convention Against Torture.
See 8 U.S.C. §§ 1158(b)(2)(A), 1231(b)(3)(B)(ii); 8 C.F.R.
§ 1208.16(d)(2) (2010).
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Gao next argues that the Board erred in finding that
he failed to meet his burden of establishing his eligibility for
deferral of removal under the Convention Against Torture.
Because Gao fails to raise any constitutional claims or
questions of law in regard to the Board’s denial of deferral of
removal, we lack jurisdiction over this claim pursuant to
§ 1252(a)(2)(C). See Saintha v. Mukasey, 516 F.3d 243 (4th Cir.
2008) (holding that Convention Against Torture determinations
are reviewed for substantial evidence and “because we only apply
that standard to factual determinations, the [Board’s Convention
Against Torture] determination . . . is properly characterized
as factual, not legal, in nature”). We therefore dismiss this
portion of the petition for review.
Finally, we have reviewed Gao’s remaining claims, to
the extent that they raise a constitutional claim or question of
law, and find them without merit. We note that Gao, who was
convicted following a jury trial, is ineligible for relief under
former § 212(c) as such relief remains available only to lawful
permanent residents (of at least seven years) whose convictions
were obtained through plea agreements and who would have been
eligible for a waiver of removal at the time of the plea
agreement. 8 U.S.C. § 1182(c) (1994) (repealed 1996); 8 C.F.R.
§ 1212.3(h) (2010); INS v. St. Cyr, 533 U.S. 289, 326 (2001).
Additionally, his aggravated felony conviction renders him
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ineligible for a § 212(h) waiver of inadmissibility. See 8
U.S.C. § 1182(h) (2006); Mbea, 482 F.3d at 279. It likewise
renders him ineligible for cancellation of removal. See 8
U.S.C. § 1229b(a) (2006).
Accordingly, we dismiss the petition for review in
part and deny the petition for review in part. 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 DISMISSED IN PART
AND DENIED IN PART
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