Amjad Pervez v. Eric Holder, Jr. , 546 F. App'x 157 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-2417
AMJAD PERVEZ,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
No. 12-2567
AMJAD PERVEZ,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
No. 13-1448
AMJAD PERVEZ,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petitions for Review of Orders of the Board of Immigration
Appeals.
Submitted: October 29, 2013 Decided: November 7, 2013
Before WILKINSON, MOTZ, and KING, Circuit Judges.
Petitions denied by unpublished per curiam opinion.
David C. Drake, CARLINER & REMES, P.C., Washington, D.C., for
Petitioner. Stuart F. Delery, Assistant Attorney General, Carl
H. McIntyre, Jr., Assistant Director, Christina J. Martin,
Office of Immigration Litigation, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Amjad Pervez, a native and citizen of Pakistan,
petitions for review of orders of the Board of Immigration
Appeals (“Board”) dismissing his appeal from the immigration
judge’s order, denying his motion for reconsideration and
denying his motion to reopen. We deny the petitions for review.
Pervez, who entered the United States as a lawful
permanent resident, was found removable for having been
convicted of an aggravated felony. See Immigration and
Nationality Act (“INA”) § 237(a)(2)(A)(iii). The aggravated
felony of which he was convicted was attempted “indecent
liberties with a child,” in violation of Va. Code Ann. § 18.2-
370, an offense relating the child sexual abuse. See INA
§ 101(a)(43)(A).
Under 8 U.S.C. § 1252(a)(2)(C) (2012), we lack
jurisdiction, except as provided in 8 U.S.C. § 1252(a)(2)(D), to
review the final order of removal of an alien convicted of
certain enumerated crimes, including an aggravated felony.
Under § 1252(a)(2)(C), this court retains jurisdiction “to
review factual determinations that trigger the jurisdiction-
stripping provision, such as whether [Pervez] [i]s an alien and
whether []he has been convicted of an aggravated felony.”
Ramtulla v. Ashcroft, 301 F.3d 202, 203 (4th Cir. 2002). If we
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are able to confirm these two factual determinations, then,
under 8 U.S.C. § 1252(a)(2)(C), (D), the court can only consider
“constitutional claims or questions of law.” See Mbea v.
Gonzales, 482 F.3d 276, 278 n.1 (4th Cir. 2007).
Pervez concedes that he is an alien convicted of an
aggravated felony. Thus, we have jurisdiction only to consider
constitutional claims and questions of law. This limitation to
our jurisdiction covers the Board’s order of removal dismissing
the appeal from the immigration judge’s order as well as the
Board’s orders denying reconsideration and reopening. See
Larngar v. Holder, 562 F.3d 71, 75 (1st Cir. 2009); Martinez-
Maldonado v. Gonzales, 437 F.3d 679, 683 (7th Cir. 2006);
Sarmadi v. INS, 121 F.3d 1319, 1321-22 (9th Cir. 1997) (“where
Congress explicitly withdraws our jurisdiction to review a final
order of deportation, our authority to review motions to
reconsider or to reopen deportation proceedings is thereby
likewise withdrawn”).
Pervez sought relief from removal by filing
applications for asylum, withholding of removal and deferral of
removal under the Convention Against Torture (“CAT”), claiming
that as an Ahmadiyya Muslim, he will be persecuted in Pakistan.
Under 8 U.S.C. § 1158(b)(2)(A)(ii) (2012), an alien convicted of
a “particularly serious crime” is not eligible for asylum. An
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aggravated felony conviction is a per se particularly serious
crime for asylum purposes. See 8 U.S.C. § 1158(b)(2)(B)(i).
Thus, because Pervez was convicted of an aggravated felony, the
immigration judge correctly found he was not eligible for
asylum.
Under 8 U.S.C. § 1231(b)(3)(B)(ii), (iv) (2012), an
alien convicted of a particularly serious crime is also not
eligible for withholding from removal. For withholding
purposes, a particularly serious crime is an aggravated felony
for which the aggregate sentence is at least five years.
However, the Attorney General is not precluded from determining
that notwithstanding the sentence, an alien has been convicted
of a particularly serious crime for withholding purposes.
In this instance, Pervez’s sentence was one day short
of five years and thus, his conviction was not a per se
particularly serious crime for withholding of removal purposes.
Nevertheless, the immigration judge reviewed the indictment, the
conviction and sentencing records and Pervez’ testimony
regarding his criminal conduct and determined that it was a
particularly serious crime. See Matter of N-A-M-, 24 I. & N.
Dec. 336, 342 (B.I.A. 2007). We conclude that the immigration
judge and the Board engaged in a case-specific analysis and did
not err as a matter of law to reach the finding that Pervez’s
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conviction was for a particularly serious crime. While no child
was actually harmed or even involved as a potential victim, a
particularly serious crime does not have to be violent or
potentially violent. See Matter of R-A-M, 25 I. & N. Dec. 657,
662 (B.I.A. 2012). In this instance, the Board and the
immigration judge considered the nature of the conviction, the
underlying facts, and the type of sentence imposed. Gao v.
Holder, 595 F.3d 549, 557 (4th Cir. 2010). Thus, we find no
legal error in the conclusion that Pervez is statutorily
ineligible for withholding of removal.
In order to be granted deferral of removal under the
CAT, Pervez must show that it is more likely than not that he
will be tortured if he is removed to Pakistan. 8 C.F.R.
§ 1208.16(c)(2)(2013). To state a prima facie case for relief
under the CAT, Pervez must show that it is more likely than not
that he will be subject to “severe pain or suffering, whether
physical or mental . . . by or at the instigation of or with the
consent or acquiescence of a public official or other person
acting in an official capacity.” 8 C.F.R. § 1208.18(a)(1)
(2013); see Saintha v. Mukasey, 516 F.3d 243, 246 & n.2 (4th
Cir. 2008). He does not need to prove that the torture would be
inflicted on account of a protected ground. Dankam v. Gonzales,
495 F.3d 113, 116 (4th Cir. 2007). While we generally review a
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denial of relief under the CAT for substantial evidence, because
Pervez is removable for having been convicted of an aggravated
felony, we can only review constitutional claims and questions
of law. See Mbea, 482 F.3d at 278.
Pervez contends that the Board erred as a matter of
law denying his motion to reconsider in which he argued that the
Board erred by not considering his claimed that he faced torture
in Pakistan because he will be a criminal deportee. We conclude
there was no error of law on the Board’s part because the
failure to consider the consequences of being a criminal
deportee as it dismissed Pervez’s appeal was because Pervez did
not raise the issue on appeal. See 8 C.F.R. § 1003.3(b) (2013)
(alien must identify the reasons for the appeal). We further
conclude that the Board did not otherwise err as a matter of law
when it denied Pervez’s motion to reconsider.
Insofar as Pervez argues here that the immigration
judge erred by not considering the consequences of Pervez’s
status as a criminal deportee if he is removed to Pakistan, we
note that Pervez’s failure to exhaust the issue on appeal
deprives us of jurisdiction to review the issue. See 8 U.S.C.
§ 1252(d)(1) (2012); Massis v. Mukasey, 549 F.3d 631, 638–40
(4th Cir. 2008) (alien’s failure to dispute an issue on appeal
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to the Board constitutes a failure to exhaust administrative
remedies barring judicial review).
We note that when the Board addressed the issue of the
potential consequences of Pervez’s criminal deportee status when
it denied Pervez’s motion to reopen, it was only doing so in
order to determine if Pervez was prejudiced by counsel’s failure
to raise this issue during his merits hearing. Pervez’s claim
that the Board was implicitly acknowledging that it should have
reviewed the issue in the order dismissing his appeal is not
supported by the record. We have reviewed the record and
conclude that the Board did not err as a matter of law by
finding that Pervez was not prejudiced by counsel’s failure to
argue that it was more likely than not that he will be detained
and tortured because he is a criminal deportee. The Board
considered the affidavits filed in support of Pervez’s motion,
all of which came from persons living in the United States, and
correctly concluded that the affiants did not show how they
gained personal knowledge that Pervez will be detained as a
criminal deportee upon his arrival in Pakistan. We note that
the affiants’ claims that Pervez will inevitably be detained and
arrested upon his arrival in Pakistan is not supported by the
objective evidence in the record. We further note that the
Board did not err as a matter of law when it considered Shahid
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Malik’s statement. Contrary to Pervez’s assertion, the Board
did not simply ignore the statement. It did presume that the
statement was submitted by an officer within an organization
serving the Ahmadi community in the United States.
Pervez also contends that he was denied due process.
In order to establish a due process violation during removal
proceedings, Pervez must show “(1) that a defect in the
proceeding rendered it fundamentally unfair and (2) that the
defect prejudiced the outcome of the case.” Anim v. Mukasey,
535 F.3d 243, 256 (4th Cir. 2008). Prejudice is shown if the
defect “was likely to impact the results of the proceedings.”
Id. (internal quotation marks omitted). We conclude that Pervez
failed to show that the denial of his motion to reopen was a due
process violation.
Insofar as Pervez argues that the immigration judge
denied him due process by failing to allow him to develop his
claim under the CAT, we note that Pervez did not raise this
issue on appeal to the Board. See Tall v. Mukasey, 517 F.3d
1115, 1120 (9th Cir. 2008) (opining that petitioner’s particular
due process claim required administrative exhaustion “because
the [Board] could have provided a remedy if his complaints were
found to be valid”); Sharashidze v. Gonzales, 480 F.3d 566, 570
(7th Cir. 2007) (“Although petitioners generally do not have to
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exhaust due process claims administratively, they must raise
such claims below when alleging procedural errors correctable by
the [Board].”). We are thus without jurisdiction to review the
claim. See 8 U.S.C. § 1252(d)(1); Massis, 549 F.3d at 638–40.
Accordingly, we deny the petitions for review. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
PETITIONS DENIED
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