Razaq v. Gonzales ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 30, 2007
Charles R. Fulbruge III
Clerk
No. 06-60534
Summary Calendar
MOHAD RAZA RAZAQ,
Petitioner,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A26 091 294
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Before KING, DAVIS and CLEMENT, Circuit Judges.
PER CURIAM:*
Mohad Raza Razaq, a native and citizen of Afghanistan,
petitions this court for review of the decision of the Board of
Immigration Appeals (BIA) finding him statutorily ineligible for
the withholding of removal under both the Immigration and
Nationality Act (INA) and the Convention Against Torture (CAT)
based on his prior conviction for a particularly serious crime.
Razaq argues that the BIA applied an incorrect legal standard in
determining that he had not rebutted the presumption that his
prior conviction was for a particularly serious crime. See
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 06-60534
-2-
In re Y-L-, 23 I. & N. Dec. 270, 276-77 (BIA 2002). We review
this contention de novo. See Soriano v. Gonzales, 484 F.3d 318,
320 (5th Cir. 2007). However, to the extent that Razaq is
challenging the merits of the determination that his crime was
particularly serious, we lack jurisdiction over his claims.
See 8 U.S.C. §§ 1231(b)(3)(B), 1252(a)(2)(B)(ii); Unukhaulu v.
Gonzales, 416 F.3d 931, 933 (9th Cir. 2005).
Under the INA, an alien is statutorily ineligible for the
withholding of removal after “having been convicted by a final
judgment of a particularly serious crime.” § 1231(b)(3)(B).
Because the withholding of removal under the CAT also shall be
denied if the alien falls within § 1231(b)(3)(B), a respondent
who has been convicted of a particularly serious crime is
likewise ineligible for withholding of removal under the CAT.
8 C.F.R. § 1208.16(d)(2). An alien may rebut the presumption
that his conviction was for a particularly serious crime by
satisfying six criteria set forth in Y-L-, 23 I. & N. Dec. at
276-77. One of those criteria is “merely peripheral involvement
by the alien in the criminal activity, transaction, or
conspiracy.” Id. at 277.
Razaq argues that under Y-L-, the peripheral-involvement
criterion “looks to the alien’s own ‘involvement’ in any drug
‘conspiracy,’ separate and apart from the person’s involvement in
a particular ‘activity’ or ‘transaction.’” He argues that the
BIA thus erred when it rejected his claim based solely on the
No. 06-60534
-3-
conclusion that his involvement in the criminal activity or
transaction was not peripheral. Razaq’s argument is untenable,
however, because Razaq was convicted as a seller, not as a member
of a conspiracy. His suggested interpretation of Y-L- is not
rational, and his reliance on Lavira v. Attorney General, 478
F.3d 158 (3d Cir. 2007), is unavailing. Accordingly, his
petition is DENIED.