Tam Pham v. Eric Holder, Jr. , 442 F. App'x 62 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-1023
TAM DUY PHAM,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals
Submitted: July 7, 2011 Decided: August 5, 2011
Before MOTZ and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Petition denied by unpublished per curiam opinion.
Dev A. Kayal, WEBB & KAYAL, Chartered, Silver Spring, Maryland,
for Petitioner. Tony West, Assistant Attorney General, Richard
M. Evans, Assistant Director, Jeffrey J. Bernstein, Office of
Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tam Duy Pham, a native and citizen of Viet Nam,
petitions for review an order of the Board of Immigration
Appeals (“Board”) dismissing his appeal from the immigration
judge’s order finding him removable for having been convicted of
an aggravated felony, under Immigration and Nationality Act
(“INA”) § 237(a)(2)(A)(iii), 8 U.S.C.A. § 1227(a)(2)(A)(iii)
(West 2005 & Supp. 2011), as aggravated felony is defined under
INA §§ 101(a)(43)(B), 101(a)(43)(U), and for having been
convicted of a controlled substance offense, under INA
§ 237(a)(2)(B)(i), 8 U.S.C.A. § 1227(a)(2)(B)(i). We deny the
petition for review.
Under INA § 237(a)(2)(A)(iii), 8 U.S.C.A.
§ 1227(a)(2)(A)(iii), an alien is removable for having been
convicted of an aggravated felony at any time after admission.
Under INA § 101(a)(43)(B), 8 U.S.C.A. § 1101(a)(43)(B) (West
2005 & Supp. 2011), an aggravated felony includes “illicit
trafficking in a controlled substance . . . including a drug
trafficking crime (as defined in section 924(c) of Title 18)[.]”
In addition, a conviction for a conspiracy to commit a drug
trafficking crime is also an aggravated felony. See INA
§ 101(a)(43)(U); 8 U.S.C.A. § 1227(a)(43)(U). Under 18 U.S.C.
§ 924(c)(2) (2006), a drug trafficking crime means any felony
punishable under the Controlled Substances Act. Under INA
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§ 237(a)(2)(B)(i), 8 U.S.C.A. § 1227(a)(2)(B)(i), an alien is
removable for having been convicted of a controlled substance
offense at any time after admission.
Although this court lacks jurisdiction to review a
final removal order based on a finding that the alien was
convicted of an aggravated felony, this court retains
jurisdiction to determine whether Pham is an alien and whether
he stood convicted of an aggravated felony. See Ramtulla v.
Ashcroft, 301 F.3d 202, 203 (4th Cir. 2002). We do not defer to
the Board’s determination that a particular state conviction
qualifies as an aggravated felony. See Soliman v. Gonzales, 419
F.3d 276, 281 (4th Cir. 2005) (recognizing that an
interpretation of a state criminal statute is not within the
Board’s authority or expertise).
We conclude that in this instance, Pham’s conviction
for conspiracy to distribute less than ½ ounce of marijuana, in
violation of Va. Code Ann. § 18.2–256 (2009), qualifies as both
an aggravated felony and a controlled substance offense. *
Accordingly, because Pham was removable for having been
convicted of an aggravated felony, we deny the petition for
review. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
*
Pham acknowledged he was a native and citizen of Viet Nam.
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before the court and argument would not aid the decisional
process.
PETITION DENIED
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