Immigration – No Removal Deferral for Cocaine Trafficker

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Hernandez-Nolasco v. Lynch (Lawyers Weekly No. 001-185-15, 9 pp.) (Keenan, J.) No. 14-2036, Dec. 4, 2015; On Petition for Review; 4th Cir.

Holding: A Honduran citizen who reported to immigration officials that his father and brother had been murdered by a gang in the Honduras and that he had been kidnapped and threatened by the same gang loses his petition for review of a removal order based on his conviction for cocaine trafficking; the 4th Circuit says the Board of Immigration Appeals did not err in determining that petitioner was convicted of a “particularly serious” crime rendering him ineligible for withholding of removal.

Petitioner argues that the immigration judge and the Board of Immigration Appeals erred in concluding that he was convicted of a “particularly serious crime,” rendering him ineligible for relief under either the Immigration and Nationality Act or the United Nations Convention Against Torture. He does not dispute that he was convicted of possession with intent to distribute cocaine, but he contends the crime was not “particularly serious” under 8 U.S.C. §§ 1231(b)(3)(B)(ii) because it was not an “aggravated felony.”

The INA defines the term “aggravated felony” to include “a drug trafficking crime.” 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, 21 U.S.C. § 924(c)(2). 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.”

Under the CSA, when the controlled substance involved in an offense is cocaine, possession with intent to distribute that substance always is punishable a felony. Therefore, petitioner’s crime of conviction qualifies as an “aggravated felony” under the INA. This “aggravated felony” conviction for which petitioner received a five-year sentence is per se a “particularly serious crime” under § 1231(b)(3)(B).

We hold that the IJ and the BIA did not err in determining that petitioner was convicted of a “particularly serious” crime rendering him ineligible for removal under the INA and the CAT. We do not reach the merits of petitioner’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. We do not have jurisdiction to consider the merits of this claim.

Petition for review dismissed in part and denied in part.