Jose Hernandez-Nolasco v. Loretta Lynch

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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