Zhao v. Atty Gen USA , 191 F. App'x 160 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
8-8-2006
Zhao v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-3572
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-3572
HUI ZHAO,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondents
On Petition for Review of an Order of
The Board of Immigration Appeals
(No. A42-731-278)
Immigration Judge: Charles M. Honeyman
Submitted Under Third Circuit LAR 34.1(a)
March 9, 2006
Before: AMBRO and BECKER,* Circuit Judges,
STAGG,** District Judge
(Opinion filed: August 8, 2006)
*
This case was submitted to the panel of Judges Ambro, Becker, and Stagg. Judge
Becker died before the filing of this Opinion. It is filed by a quorum of the panel under
28 U.S.C. § 46(d).
**
Honorable Tom Stagg, Senior District Judge for the Western District of
Louisiana, sitting by designation.
OPINION
AMBRO, Circuit Judge
Hui Zhao, a Chinese citizen, was convicted of an aggravated felony—conspiracy
to purchase drugs. He was charged with removal and appeared before an immigration
judge, who denied him relief. Zhao claims that he is eligible for asylum or cancellation of
removal, that he was not convicted of a “particularly serious crime,” and that he is
entitled to relief under the Convention Against Torture (CAT). But Zhao’s aggravated-
felony conviction precludes his success on the first issue and divests us of jurisdiction
over the third, and the finding of a “particularly serious crime” was not unreasonable. We
therefore deny his petition for review.
I. Factual Background and Procedural History
Zhao is a native and citizen of the People’s Republic of China. He was convicted
in March 2001 for conspiracy to possess with intent to distribute marijuana and cocaine.
The charge against Zhao was that he had brokered a deal with a codefendant to buy 10
pounds of marijuana and 5 ounces of cocaine for $11,000 from a government informant.
He was sentenced to 15 months’ imprisonment and 3 years’ supervised release.
The Immigration and Naturalization Service1 filed a notice to appear charging
Zhao with being subject to removal as an alien convicted of a controlled-substance law
1
Now Bureau of Immigration and Customs Enforcement.
2
and as an alien convicted of an aggravated felony. Zhao appeared before an immigration
judge (IJ). He admitted the factual allegations on the notice to appear, denied
removability, and sought relief under statutory withholding of removal and under the
CAT.2 The IJ denied his applications.
Zhao timely appealed to the Board of Immigration Appeals (BIA), which affirmed
the IJ’s decision. Zhao petitioned for review of the BIA’s decision in our Court, but we
dismissed the petition for lack of jurisdiction in July 2004. Later that month, Zhao filed a
petition for a writ of habeas corpus in the Middle District of Pennsylvania, which
transferred the petition, as a converted petition for review, to our Court.
II. Discussion
The BIA had jurisdiction under 8 C.F.R. § 1003.1(b). Pursuant to the REAL ID
Act of 2005, Pub. L. No. 109-13, div. B, § 106(c), 119 Stat. 231, 311, the District Court
transferred Zhao’s habeas petition to our Court in July 2005.
The Government contests our jurisdiction. Because we split Zhao’s arguments
into three categories, we deal with the specific jurisdictional (and, if applicable, standard
of review) issues separately for each one.
We have jurisdiction to consider our jurisdiction, cf. Papageorgiou v. Gonzales,
413 F.3d 356, 357 (3d Cir. 2005), and we “review jurisdictional questions de novo,”
Urena-Tavarez v. Ashcroft, 367 F.3d 154, 157 (3d Cir. 2004).
2
Officially, the United Nations Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85.
3
A.
Zhao first disputes the BIA’s conclusion that he is not eligible for asylum or
cancellation of removal. He claims that his crime was not “particularly serious” under the
framework set forth in In re Y-L-, 23 I. & N. Dec. 270 (B.I.A. 2002). But the resolution
of this issue rests on plain statutory language.3
Under 8 U.S.C. § 1158(b)(2)(A)(ii), an alien “convicted by a final judgment of a
particularly serious crime” is not eligible to apply for asylum if the Attorney General
determines that he “constitutes a danger to the community of the United States.” We
need not look to In re Y-L- to decide whether Zhao was convicted of a particularly serious
crime, as the statute further provides that “an alien who has been convicted of an
aggravated felony shall be considered to have been convicted of a particularly serious
crime.” Id. § 1158(b)(2)(B)(i). In our July 2004 order, we determined that Zhao’s
conviction qualifies as an aggravated felony. He is not eligible to apply for asylum
because he is statutorily deemed to have been convicted of a particularly serious crime.
Likewise, Zhao is not eligible for cancellation of his removal. Under 8 U.S.C.
§ 1229b(a)(3), the Attorney General cannot cancel removal for an alien who has “been
convicted of any aggravated felony.”
B.
3
We exercise de novo review over the BIA’s legal conclusions, “subject to
established principles of deference.” Mendez-Reyes v. Att’y Gen., 428 F.3d 187, 191 (3d
Cir. 2005) (internal quotation marks omitted).
4
Zhao argues that the IJ erred in deciding that he had been convicted of a
particularly serious crime,4 a decision that led the BIA to decide that he was ineligible for
statutory withholding of removal.5 Under 8 U.S.C. § 1231(b)(3)(B)(ii), the Attorney
General cannot withhold an alien from removal if “the Attorney General decides
that . . . the alien, having been convicted by a final judgment of a particularly serious
crime[,] is a danger to the community of the United States.” An alien convicted of an
aggravated felony and sentenced to an aggregate term of imprisonment of at least five
years is statutorily deemed to have committed a “particularly serious crime.” Id.
§ 1231(b)(3)(B). Because Zhao was sentenced to only 15 months’ imprisonment, he does
not automatically fall within that category. This mandatory five-year qualification does
not, however, “preclude the Attorney General from determining that, notwithstanding the
length of sentence imposed, an alien has been convicted of a particularly serious crime.”
Id.
The Government argues that we do not have jurisdiction to decide this issue under
either § 1252(a)(2)(B) or § 1252(a)(2)(C). Under Alaka v. Attorney General, — F.3d —,
—, 2006 WL 1994500, at *15 (3d Cir. July 18, 2006), though, we do have jurisdiction to
4
The definition of a particularly serious crime is different in the context of
statutory withholding of removal under 8 U.S.C. § 1231 than in the context of asylum
under 8 U.S.C. § 1158.
5
Statutory withholding of removal is different than withholding of removal under
the CAT. See Kamalthas v. INS, 251 F.3d 1279, 1283 (9th Cir. 2001). We discuss the
CAT claim below.
5
review the BIA’s “particularly serious crime” determination. For this question, which
involves the application of law to fact, we “review the BIA’s legal decisions de novo, but
will afford Chevron deference to the BIA’s [and the IJ’s] reasonable interpretations of
statutes which it is charged with administering.” Francois v. Gonzales, 448 F.3d 645,
648 (3d Cir. 2006) (internal quotation marks omitted).6
In re Y-L- holds that “aggravated felonies involving unlawful trafficking in
controlled substances presumptively constitute ‘particularly serious crimes’ within the
meaning of section 241(b)(3)(B)(ii) [8 U.S.C. § 1231(b)(3)(B)(ii)]. Only under the most
extenuating circumstances that are both extraordinary and compelling would departure
from this interpretation be warranted or permissible.” 23 I. & N. Dec. at 274. Instead of
deeming all drug-trafficking offenses to be per se particularly serious, the Attorney
General opted to leave open “the possibility of the very rare case where an alien may be
able to demonstrate extraordinary and compelling circumstances that justify treating a
particular drug trafficking crime as falling short of that standard.” Id. at 276.
Such an “unusual circumstance[]” requires at least these several factors:
(1) a very small quantity of controlled substance; (2) a very modest amount
of money paid for the drugs in the offending transaction; (3) merely
peripheral involvement by the alien in the criminal activity, transaction, or
conspiracy; (4) the absence of any violence . . . ; (5) the absence of any
organized crime or terrorist organization involvement . . . ; and (6) the
absence of any adverse or harmful effect . . . on juveniles.
6
The BIA here issued an opinion, so we are not faced with the question whether an
IJ’s opinion affirmed by the BIA without opinion is also entitled to Chevron deference.
See Ng v. Att’y Gen., 436 F.3d 392, 395 n.4 (3d Cir. 2006).
6
Id. at 276–77.
We do not need to analyze factors (4), (5), or (6), as they are not at issue here.
Zhao argues that his crime is not particularly serious under factors (1), (2), and (3). He
thus claims that 10 pounds of marijuana and 5 ounces of cocaine are “a very small
quantity of controlled substance”; that $11,000 is “a very modest amount of money”; and
that buying drugs from a government informer for a co-conspirator is “merely peripheral
involvement.”
Zhao is correct that the crimes discussed in In re Y-L- were more serious than his.
One involved 84 grams of cocaine and resisting a police officer with violence. Id. at 277.
Another involved 1,330 grams of cocaine. Id. at 278. The third involved “multi-kilogram
quantities” of cocaine for distribution. Id. But the Attorney General also noted that “each
[respondent] was a direct actor or perpetrator—not merely a peripheral figure—in their
respective criminal activities.” Id. at 277.
Zhao’s crime does not fit within each factor—each of which must be satisfied to
escape the “particularly serious crime” determination. Ten pounds of marijuana and five
ounces7 of cocaine is not “a very small quantity of controlled substance.” Eleven
thousand dollars is not “a very modest amount of money.” And buying drugs from a
government informer for a co-conspirator is not “merely peripheral involvement.” The
IJ’s determination that Zhao was convicted of a particularly serious crime and the BIA’s
7
We note that, as a mathematical statement, Zhao’s five ounces of cocaine is
roughly 140 grams.
7
determination that he was ineligible for statutory withholding of removal were both
reasonable interpretations of § 1231(b)(3)(B).
C.
Zhao also argues that the IJ erroneously made an adverse credibility determination
for deferral of removal under the CAT. The Government claims that we have no
jurisdiction over this issue by virtue of 8 U.S.C. § 1252(a)(2)(C).
First, an IJ’s final decision on a deferral of removal under the CAT is a “final order
of removal” under § 1252(a)(2)(C). Indeed, 8 C.F.R. § 208.18(e)(1) provides that “there
shall be no judicial appeal or review of any action, decision, or claim raised under the
[CAT], except as part of the review of a final order of removal pursuant to section 242 of
the Act [8 U.S.C. § 1252].” (emphasis added).
Because 8 U.S.C. § 1252(a)(2)(C) divests us of “jurisdiction to review any final
order of removal against an alien who is removable by reason of having committed a
criminal offense covered in [8 U.S.C. § 1227(a)(2)(A)(iii)—that is, an aggravated
felony],” we must consider whether § 1252(a)(2)(D) revives our jurisdiction over this
issue.8
Section 1252(a)(2)(D) allows us jurisdiction over “constitutional claims or
questions of law.” Zhao raises no constitutional claims. Our Court has defined
8
It is uncontested—and already decided in our July 2004 order—that Zhao was
convicted of an aggravated felony, which includes “illicit trafficking in a controlled
substance,” 8 U.S.C. § 1101(a)(43)(B).
8
“questions of law” to include “pure questions of law and . . . issues of application of law
to fact, where the facts are undisputed and not the subject of challenge.” Kamara v. Att’y
Gen., 420 F.3d 202, 211 (3d Cir. 2005) (citation and internal quotation marks omitted).
But “factual or discretionary determinations continue to fall outside [our] jurisdiction.”
Sukwanputra v. Gonzales, 434 F.3d 627, 634 (3d Cir. 2006).9
What we have before us is neither a pure question of law nor an application of law
to undisputed fact. The IJ’s credibility determination is a factual issue. See Jishiashvili v.
Att’y Gen., 402 F.3d 386, 392 (3d Cir. 2005) (noting that “credibility determinations are
factual matters”); see also Cao v. Att’y Gen., 407 F.3d 146, 152 (3d Cir. 2005) (“The
credibility determination, like all IJ factual findings, is subject to substantial evidence
review.”). Thus, Zhao’s challenge to the adverse credibility finding is a question of fact,
and § 1252(a)(2)(C) puts this issue outside our jurisdiction.10
9
Although Zhao’s habeas petition is treated as a petition for review after the
REAL ID Act, cf. Kamara, 420 F.3d at 210, even our alien habeas jurisdiction was
“limited to constitutional issues and errors of law . . . , but [did] not include review of
administrative fact findings or the exercise of discretion,” Auguste v. Ridge, 395 F.3d 123,
138 (3d Cir. 2005). And our post-REAL ID Act jurisdictional standard “mirrors our
previously enunciated standard of review over an alien’s habeas petition.” Kamara, 420
F.3d at 211.
10
See also Hamid v. Gonzales, 417 F.3d 642, 647 (7th Cir. 2005) (“Unfortunately
for Hamid, his argument that the IJ wrongly denied him CAT relief does not depend upon
any constitutional issue or question of law. Rather, it comes down to whether the IJ
correctly considered, interpreted, and weighed the evidence presented . . . . We therefore
find no basis, within the limited scope of our jurisdiction to consider the claims of
aggravated felons, to find that the IJ erred. . . . , so we DISMISS his petition for
review . . . for lack of jurisdiction.”).
9
*****
Zhao is ineligible for asylum or cancellation of removal because he was convicted
of an aggravated felony. He is ineligible for statutory withholding of removal because he
was convicted of a particularly serious crime. We do not have jurisdiction over his CAT
claims because he raises only the factual issue of the IJ’s adverse credibility finding.11
We therefore deny in part and dismiss in part what we deem to be Zhao’s petition for
review.
11
This therefore precludes us from rendering a decision on both of Zhao’s
arguments under the CAT—that he should not be ineligible for withholding under the
CAT, and that he should be granted deferral of removal under the CAT.
10