UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1005
JOSE ABILIO CARCAMO,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Argued: January 28, 2016 Decided: May 6, 2016
Before TRAXLER, Chief Judge, and AGEE and WYNN, Circuit Judges.
Petition for review denied in part and dismissed in part by
unpublished opinion. Judge Wynn wrote the opinion, in which
Chief Judge Traxler and Judge Agee joined.
ARGUED: Brian Patrick Casson, JOHNSON & ASSOCIATES, P.C.,
Arlington, Virginia, for Petitioner. Carlton Frederick
Sheffield, 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, Principal Deputy Assistant Attorney General, Erica B.
Miles, Senior Litigation Counsel, Office of Immigration
Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
2
WYNN, Circuit Judge:
Jose Abilio Carcamo petitions for review of the Board of
Immigration Appeals’s (BIA’s) decision finding that Carcamo was
an “aggravated felon” under the Immigration and Nationality Act
(INA) and denying his applications for relief from removal. We
hold that the District of Columbia’s criminal statute
proscribing possession with intent to distribute a controlled
substance, D.C. Code § 48-904.01(a), is a “divisible” statute
under Descamps v. United States, 133 S. Ct. 2276 (2013).
Applying the modified categorical approach, we find that
Carcamo’s conviction constitutes an aggravated felony under the
INA. Because Carcamo is an aggravated felon, the BIA correctly
concluded that he was removable and ineligible for cancellation
of removal, asylum, and withholding of removal. Additionally,
we lack jurisdiction to review the BIA’s denial of Carcamo’s
petition for deferral of removal under the Convention Against
Torture (CAT) because we may not review the BIA’s factual
conclusions. Accordingly, the petition for review is denied in
part and dismissed in part for lack of jurisdiction.
I.
Carcamo, a citizen of El Salvador, entered the United
States unlawfully in 1987, and became a lawful permanent
resident in 2001. Carcamo was arrested in Washington, D.C., in
2010, and pled guilty to attempted possession with intent to
3
distribute a controlled substance, in violation of D.C. Code
§§ 48-904.09 and 48-904.01(a). 1 The Superior Court of the
District of Columbia sentenced Carcamo to nine months of
incarceration and three years of supervised release, but
suspended the execution of the sentence.
In 2013, the United States Department of Homeland Security
served Carcamo with a notice to appear, alleging that he was
removable pursuant to two separate provisions of Section 237 of
the INA. First, the notice to appear charged that he was
removable as an “alien who at any time after admission has been
convicted of a violation of (or a conspiracy or attempt to
violate) any law or regulation of a State, the United States, or
a foreign country relating to a controlled substance.” INA
§ 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i). Second, the
notice to appear charged that he was removable because he had
been “convicted of an aggravated felony.” INA
§ 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii).
1D.C. Code § 48-904.09 states that “[a]ny person who
attempts . . . to commit any offense defined in this subchapter
is punishable by imprisonment or fine or both which may not
exceed the maximum punishment prescribed for the offense” that
was the object of the attempt. The attempted offense, in
Carcamo’s case, was D.C. Code § 48-904.01(a), which makes it
“unlawful for any person knowingly or intentionally to
manufacture, distribute, or possess, with intent to manufacture
or distribute, a controlled substance.” D.C. Code § 48-
904.01(a)(1).
4
At his initial removal hearing, Carcamo did not contest his
removability nor seek any relief from removal. Accordingly, the
immigration judge held that Carcamo was removable. Carcamo
subsequently filed a motion to reconsider and a request for stay
of removal, in which he asserted that he “failed to comprehend
the nature of his removal proceedings due to his illiteracy and
the ineffective translation by the Court’s Spanish language
interpreter.” A.R. 360. On February 25, 2014, the immigration
judge granted Carcamo’s motion to reconsider and reopened his
removal proceedings.
Carcamo’s motion to reconsider raised new legal arguments.
While he admitted that he was removable under 8 U.S.C.
§ 1227(a)(2)(B)(i) for violating a state controlled substance
law, Carcamo contested his removability under 8 U.S.C.
§ 1227(a)(2)(A)(iii) as an aggravated felon. Carcamo also
asserted his intention to pursue various forms of relief from
removal, some of which are unavailable to those who have been
convicted of an aggravated felony. Carcamo argued that his D.C.
statute of conviction did not meet the definition of an
aggravated felony under the INA because it was not a categorical
match with any crime punishable as a felony under the Controlled
Substances Act (CSA). See Moncrieffe v. Holder, 133 S. Ct.
1678, 1683–84 (2013). Carcamo subsequently filed applications
for cancellation of removal for certain permanent residents,
5
asylum and withholding of removal under the INA, and deferral of
removal under the CAT.
After a hearing, the immigration judge determined that
Carcamo’s statute of conviction, D.C. Code § 48-904.01(a), was
divisible, and that Carcamo had violated the portion of the
statute that constituted a felony under the CSA. The
immigration judge therefore held that Carcamo had been convicted
of an aggravated felony under the INA. The immigration judge
went on to deny Carcamo’s various requests for relief from
removal.
The BIA also found that D.C. Code § 48-904.01(a) was
divisible. Applying the modified categorical approach, the BIA
held that Carcamo had committed an aggravated felony and
affirmed the immigration judge’s denial of Carcamo’s
applications for relief from removal.
II.
This Court has jurisdiction to review final orders of
removal against “criminal aliens” with respect to
“constitutional claims or questions of law.” 8 U.S.C.
§ 1252(a)(2)(C), (D). We review the BIA’s legal determinations
de novo. Martinez v. Holder, 740 F.3d 902, 909 (4th Cir. 2014).
The BIA is entitled to deference for its interpretation of
immigration statutes, such as the INA. Omargharib v. Holder,
775 F.3d 192, 196 (4th Cir. 2014). A precedential decision of a
6
three-member panel of the BIA receives Chevron deference, while
a decision by a single member of the BIA—like the one in this
case—is entitled to the lesser Skidmore deference. Martinez,
740 F.3d at 909–10; see Skidmore v. Swift & Co., 323 U.S. 134,
139–40 (1944). However, “where, as here, the BIA construes
statutes [and state law] over which it has no particular
expertise, its interpretations are not entitled to deference.”
Omargharib, 775 F.3d at 196 (alteration in original) (quoting
Karimi v. Holder, 715 F.3d 561, 566 (4th Cir. 2013)).
Additionally, when the BIA rules on a matter within its
area of expertise, we can affirm its decision “solely [on] the
grounds invoked by the [BIA]” and may not substitute what we
consider to be “a more adequate or proper basis” for the
decision. SEC v. Chenery Corp., 332 U.S. 194, 196 (1947); see
Crespin-Valladares v. Holder, 632 F.3d 117, 123 (4th Cir. 2011).
If the BIA rested its decision on improper grounds, “the proper
course, except in rare circumstances, is to remand to the agency
for additional investigation or explanation.” Hussain v.
Gonzales, 477 F.3d 153, 157 (4th Cir. 2007) (quoting INS v.
Ventura, 537 U.S. 12, 16 (2002)).
A.
Carcamo argues that his prior conviction under D.C. Code
§§ 48-904.09 and 48-904.01(a) does not constitute an aggravated
felony under the INA. We disagree.
7
Although the government has the initial burden of
establishing by clear and convincing evidence that a noncitizen
is deportable, the burden shifts to the noncitizen to prove
eligibility for relief from removal. 8 U.S.C. § 1229a(c)(3)(A),
(4)(A). Carcamo concedes his removability pursuant to 8 U.S.C.
§ 1227(a)(2)(B)(i) for violating a state controlled substance
law, so he carries the burden of proving that he is entitled to
relief from removal. See Mondragón v. Holder, 706 F.3d 535, 545
(4th Cir. 2013); Salem v. Holder, 647 F.3d 111, 115 (4th Cir.
2011). Because Carcamo is eligible for certain forms of relief
only if he is not an aggravated felon, he must “show that [his
D.C.] conviction was not for an ‘aggravated felony’ as defined
in the INA.” Mondragón, 706 F.3d at 545; see also 8 C.F.R.
§ 1240.8(d).
1.
“When the Government alleges that a state conviction
qualifies as an ‘aggravated felony’ under the INA, we generally
employ a ‘categorical approach’ to determine whether the state
offense is comparable to an offense listed in the INA.”
Moncrieffe, 133 S. Ct. at 1684. The “central feature” of the
categorical approach is its “focus on the elements, rather than
the facts, of a crime.” Descamps, 133 S. Ct. at 2285. “Because
Congress predicated deportation ‘on convictions, not conduct,’
the [categorical] approach looks to the statutory definition of
8
the offense of conviction, not to the particulars of an alien’s
behavior.” Mellouli v. Lynch, 135 S. Ct. 1980, 1986 (2015)
(quoting Alina Das, The Immigration Penalties of Criminal
Convictions: Resurrecting Categorical Analysis in Immigration
Law, 86 N.Y.U. L. Rev. 1669, 1701 (2011)). Under the
categorical approach, we compare the elements of the state
statute of conviction with the “‘generic’ federal definition of
a corresponding aggravated felony.” Moncrieffe, 133 S. Ct. at
1684 (citation omitted). A state statute of conviction will be
a categorical match with the generic federal offense if every
violation of the state statute would necessarily be a violation
of the generic crime. See id.
If the state statute of conviction is not a categorical
match to the generic offense and the state statute is
“divisible,” courts may use a tool known as the “modified
categorical approach” to determine if the elements of the crime
that formed the basis of the noncitizen’s conviction align with
the generic federal offense. Descamps, 133 S. Ct. at 2283–84.
A statute is divisible when it “lists multiple, alternative
elements, and so effectively creates ‘several different . . .
crimes.’” Id. at 2285 (quoting Nijhawan v. Holder, 557 U.S. 29,
41 (2009)); see Moncrieffe, 133 S. Ct. at 1684 (noting that the
modified categorical approach applies when a statute “contain[s]
several different crimes, each described separately”). If a
9
statute is divisible, the modified categorical approach allows
courts to “examine a limited class of documents to determine
which of a statute’s alternative elements formed the basis of
the defendant’s prior conviction.” Descamps, 133 S. Ct. at
2284. This limited class of documents includes “charging
documents, plea agreements, transcripts of plea colloquies,
findings of fact and conclusions of law from a bench trial, and
jury instructions and verdict forms,” Johnson v. United States,
559 U.S. 133, 144 (2010), as well as other “comparable judicial
record[s],” Shepard v. United States, 544 U.S. 13, 26 (2005).
2.
We begin by considering whether the D.C. statute under
which Carcamo was convicted is a categorical match with any
aggravated felony under the INA. 2 The INA provides an enumerated
list of offenses that constitute an “aggravated felony.” 8
U.S.C. § 1101(a)(43). In this case, the notice to appear
2
The government argues that it is unnecessary for the Court
to apply the categorical or modified categorical approaches
because Carcamo’s previous counsel admitted that the offense
involved cocaine in his initial removal hearing—prior to Carcamo
filing, and the immigration judge granting, the motion to
reconsider. However, the government did not raise this argument
before the immigration judge or the BIA, and neither tribunal
bound Carcamo to these early admissions. We too decline to hold
Carcamo to the admissions made prior to the immigration judge’s
decision to grant the motion to reconsider. See United States
v. Foreman, 369 F.3d 776, 784 n.8 (4th Cir. 2004); see also INS
v. Aguirre-Aguirre, 526 U.S. 415, 432 (1999) (declining to
address an argument “at this late stage” when the respondent
“failed to raise it before either the BIA or the Court of
Appeals”).
10
alleged that Carcamo committed two of these offenses: first,
“illicit trafficking in a controlled substance,” id.
§ 1101(a)(43)(B), and second, “an attempt . . . to commit” any
other enumerated offense, id. § 1101(a)(43)(U). Carcamo does
not contest the fact that under both D.C. law and the INA an
attempt to commit an offense is treated the same as the
completion of the offense. See id.; D.C. Code § 48-904.09.
Thus, the parties agree that the key question for our analysis
is whether Carcamo’s attempted offense, the violation of D.C.
Code § 48-904.01(a) (“D.C. statute”), aligns categorically with
the INA aggravated felony enumerated in 8 U.S.C.
§ 1101(a)(43)(B).
Under Section 1101(a)(43)(B), “illicit trafficking in a
controlled substance (as defined in section 802 of Title 21),
including a drug trafficking crime (as defined in section 924(c)
of Title 18)” is an aggravated felony. Section 924(c)(2) of
Title 18 further defines “drug trafficking crime” to mean, in
relevant part, “any felony punishable under the [CSA].”
Finally, “felony” is defined as any offense for which “the
maximum term of imprisonment authorized” is “more than one
year.” 18 U.S.C. § 3559(a)(1)–(5). In summary, “a noncitizen’s
conviction of an offense that the [CSA] makes punishable by more
than one year’s imprisonment will be counted as an ‘aggravated
11
felony’ for immigration purposes.” Moncrieffe, 133 S. Ct. at
1683.
The D.C. statute makes it “unlawful for any person
knowingly or intentionally to manufacture, distribute, or
possess, with intent to manufacture or distribute, a controlled
substance” as defined by D.C. law. D.C. Code § 48-904.01(a)(1).
The government argues that this statute is comparable to a
violation of 21 U.S.C. § 841(a)(1), a CSA provision that makes
it “unlawful for any person knowingly or intentionally . . . to
manufacture, distribute, or dispense, or possess with intent to
manufacture, distribute, or dispense, a controlled substance” as
defined by federal law.
As the government concedes, it is possible for someone to
violate the D.C. statute without committing a felony under 21
U.S.C. § 841(a)(1). That is because the D.C. statute
criminalizes behavior that would fall into the CSA’s misdemeanor
exception for a drug offense that involves “a small amount of
marihuana for no remuneration.” 21 U.S.C. § 841(b)(4); see D.C.
Code § 48-904.01(a); id. § 48-902.08(a)(6) (listing “[c]annabis”
as a Schedule III controlled substance under D.C. law).
Therefore, employing the categorical approach, a violation of
the D.C. statute is not necessarily an aggravated felony. 3
3 The Supreme Court reached a similar conclusion in
Moncrieffe, holding that a Georgia statute criminalizing
12
3.
Although all violations of the D.C. statute would not be
punished categorically as a felony under the CSA, the government
argues that the statute is divisible, and thus subject to the
modified categorical approach. The term “controlled substance,”
as used in the D.C. statute, “means a drug, substance, or
immediate precursor, as set forth in Schedules I through V.”
D.C. Code § 48-901.02(4). Schedules I through V contain an
enumerated list of the controlled substances under D.C. law.
Id. §§ 48-902.04, 48-902.06, 48-902.08, 48-902.10, 48-902.12.
The government argues that the D.C. statute is divisible because
each controlled substance is an alternative element that must be
proven in order to convict someone under the statute. For the
purposes of this case, we agree.
As explained above, a statute is divisible if it contains
“multiple, alternative elements.” Descamps, 133 S. Ct. at 2285.
An element of the crime is not simply “a particular set of
facts” through which the crime may be committed. Id. at 2291.
Instead, it is a part of the crime that the jury must find
“unanimously and beyond a reasonable doubt.” Id. at 2290.
possession of marijuana with intent to distribute was not
categorically a felony under the CSA because some violations of
the statute would fall into the misdemeanor exception of 21
U.S.C. § 841(b)(4). 133 S. Ct. at 1686–87.
13
To determine whether the D.C. statute contains alternative
elements, we first “examine the relevant statutory language and
interpretations of that language by the state’s highest court.”
United States v. Mungro, 754 F.3d 267, 269 (4th Cir. 2014).
Additionally, “we consider how [D.C.] courts generally instruct
juries with respect to that offense.” United States v. Royal,
731 F.3d 333, 341 (4th Cir. 2013); see also Omargharib, 775 F.3d
at 199.
The term “controlled substance,” as used in the D.C.
statute, refers to an exhaustive list of controlled substances
contained in the D.C. drug schedules. D.C. Code § 48-
904.01(a)(1); see id. §§ 48-901.02(4), 48-902.04, 48-902.06, 48-
902.08, 48-902.10, 48-902.12. The schedules serve as a list of
alternative elements, similar to the Supreme Court’s
illustrative example in Descamps of a divisible statute, which
contained an exhaustive list of “eight specified weapons.” See
133 S. Ct. at 2289–90. Therefore, the text indicates that the
D.C. statute is divisible.
Here, the list of alternative elements—i.e., the list of
controlled substances—is not found in the statute of conviction,
but is incorporated into the D.C. statute by reference to other
statutory provisions. However, this does not preclude a finding
of divisibility. This Court has previously applied the modified
categorical approach to a list of alternative elements found in
14
an outside statute. United States v. McLeod, 808 F.3d 972, 977
(4th Cir. 2015). 4 Additionally, several circuit courts have held
that state statutes relating to controlled substances are
divisible, even when the list of controlled substances is found
in the state’s drug schedules and not in the statute of
conviction. See, e.g., United States v. Gomez-Alvarez, 781 F.3d
787, 792, 796 (5th Cir. 2015); Coronado v. Holder, 759 F.3d 977,
984–85 (9th Cir. 2014), cert. denied, 135 S. Ct. 1492 (2015);
Ruiz-Giel v. Holder, 576 F. App’x 738, 743–44 (10th Cir. 2014).
The interpretations of the highest court of the District of
Columbia further suggest that the identity of the controlled
substance is an element of the D.C. statute. In Callaham v.
United States, the D.C. Court of Appeals held that the
government must “prove beyond a reasonable doubt that the
substance was cocaine” in order to convict someone of violating
D.C. Code § 48-904.01(a) with regard to cocaine. 937 A.2d 141,
147 (D.C. 2007). Finding that a chemist’s report identifying
4
The majority of circuit courts to consider such outside
references have reached the same conclusion. See, e.g., United
States v. Mathis, 786 F.3d 1068, 1074–75, 1075 n.7 (8th Cir.
2015), cert. granted, 136 S. Ct. 894 (2016); United States v.
Trent, 767 F.3d 1046, 1055–57 (10th Cir. 2014), cert. denied,
135 S. Ct. 1447 (2015); United States v. Herrera–Alvarez, 753
F.3d 132, 139–40 (5th Cir. 2014); United States v. Hockenberry,
730 F.3d 645, 669 (6th Cir. 2013). But see United States v.
Simmons, 782 F.3d 510, 517 (9th Cir. 2015) (declining to look to
an outside statute defining a term in the statute of conviction
because it did not contain alternative “elements” of the crime
in question).
15
the substance as cocaine was improperly admitted, and that the
error was not harmless, the Callaham court reversed the
defendant’s conviction. Id.; see also Fields v. United States,
952 A.2d 859, 864–66 (D.C. 2008) (similarly reversing a
conviction because the admission of a report identifying the
substance was in error and “the government would . . . have to
prove that the substance was marijuana in order to prove
appellant’s attempted possession”).
Moreover, the D.C. Court of Appeals has stated that if a
defendant is found in possession of two different types of
controlled substances, “the possession of each prohibited
substance [is] a separate offense.” Plummer v. United States,
43 A.3d 260, 273–74 (D.C. 2012) (quoting Corbin v. United
States, 481 A.2d 1301, 1302 (D.C. 1984) (per curiam)). On the
other hand, “a defendant cannot be convicted of two counts of
possession of a controlled substance with intent to distribute
it when two quantities of the [same] controlled substance are
found in the same place at the same time” because the two counts
merge into a single violation of D.C. Code § 48-904.01(a). Id.
at 273 (alteration in original) (quoting Allen v. United States,
580 A.2d 653, 658 (D.C. 1990)); see also Briscoe v. United
States, 528 A.2d 1243, 1245–46 (D.C. 1987) (per curiam). This
demonstrates that the D.C. statute encompasses different crimes
based on the type of controlled substance.
16
Finally, D.C.’s model jury instruction for a violation of
the D.C. statute confirms that the identity of the controlled
substance is an element of the crime. The model jury
instruction states that “the elements of possession with intent
to distribute a controlled substance, each of which the
government must prove beyond a reasonable doubt, are”—in
relevant part—“[Name of defendant] possessed [a [measurable]
[detectable] amount of a controlled substance] [more than one
ounce of marijuana].” Criminal Jury Instructions for the
District of Columbia 6.201 (5th ed. rev. 2015) (brackets in
original). The instruction further provides that “[i]n order to
decide whether the material was [name of controlled substance],
you may consider all evidence that may help you, including
exhibits, expert, and non-expert testimony.” Id. (second
brackets in original). These model instructions clearly
indicate that the jury must find beyond a reasonable doubt which
controlled substance was involved in a violation of the D.C.
statute in order to sustain a conviction. See Rose v. United
States, 49 A.3d 1252, 1255, 1258 (D.C. 2012) (finding no plain
error in a jury instruction that stated, in an unchallenged
portion, that the government was required to prove beyond a
reasonable doubt that the defendants “possessed phencyclidine”).
17
In sum, the statutory text, authoritative pronouncements of
the D.C. courts, and the model jury instructions all support the
conclusion that D.C. Code § 48-904.01(a) is divisible.
4.
Because the D.C. statute is divisible, the BIA correctly
applied the modified categorical approach and looked to reliable
court documents to determine which controlled substance was an
element of Carcamo’s offense. Descamps, 133 S. Ct. at 2284.
The administrative record in this case contains Carcamo’s
judgment of conviction issued by the Superior Court of the
District of Columbia. A judgment of conviction is a reliable
judicial record that courts may consult in implementing the
modified categorical approach. See United States v. Allen, 446
F.3d 522, 532, 532 n.14 (4th Cir. 2006).
Carcamo’s judgment of conviction states that he pled guilty
to attempted possession with intent to distribute “a
[c]ontrolled [s]ubstance (Cocaine).” A.R. 397. Thus, we
consider whether a violation of the D.C. statute involving the
alternative element cocaine is a categorical match with a crime
punishable as a felony under the generic federal statute. Any
violation of 21 U.S.C. § 841 involving cocaine is a felony under
the CSA because the maximum punishment exceeds one year of
imprisonment. 21 U.S.C. §§ 812(c), 841(b)(1)(A)(ii)(II),
(b)(1)(B)(ii)(II), (b)(1)(C). Therefore, the BIA correctly
18
concluded that Carcamo was convicted of an aggravated felony
under the INA pursuant to the modified categorical approach. 5
B.
Finally, we consider whether Carcamo—as an aggravated
felon—is eligible for any of his requested forms of relief from
removal, including: (1) cancellation of removal for certain
permanent residents pursuant to 8 U.S.C. § 1229b(a); (2) asylum
pursuant to 8 U.S.C. § 1158; (3) withholding of removal pursuant
to 8 U.S.C. § 1231(b)(3); and (4) deferral of removal pursuant
to the implementing regulations of the CAT, 8 C.F.R.
§§ 208.16(c), (d), 208.17(a).
The statutory provisions for both asylum and cancellation
of removal expressly disqualify any noncitizen who has been
convicted of an aggravated felony. 8 U.S.C.
§§ 1158(b)(2)(A)(ii), (b)(2)(B)(i), 1229b(a)(3). Thus, the BIA
correctly concluded that Carcamo is ineligible for the first two
forms of relief he requests.
5We also find meritless Carcamo’s alternative argument that
the D.C. statute includes “social sharing” in its definition of
“distribution,” whereas the CSA requires some type of
“commercial dealing.” Petitioner’s Br. at 12–13. Contrary to
Carcamo’s assertion, social sharing may be punishable as a
felony under the CSA. See United States v. Washington, 41 F.3d
917, 919 (4th Cir. 1994) (“Sharing drugs with another
constitutes ‘distribution’ under § 841(a)(1)” even if no sale or
commercial scheme is involved.); see also 21 U.S.C. § 802(8),
(11) (defining “distribute” as the “transfer of a controlled
substance,” with no requirement for payment).
19
Withholding of removal under the INA is unavailable to any
noncitizen who has been convicted of “a particularly serious
crime.” Id. § 1231(b)(3)(B)(ii); 8 C.F.R. § 208.16(d)(2). A
noncitizen who has been convicted of an aggravated felony and
sentenced to a term of at least five years “shall be considered
to have committed a particularly serious crime.” 8 U.S.C.
§ 1231(b)(3)(B). If a noncitizen was convicted of an aggravated
felony but sentenced to less than five years of imprisonment,
“it shall be presumed” that the noncitizen “has been convicted
of a particularly serious crime,” although that presumption is
rebuttable. 8 C.F.R. § 208.16(d)(3).
Carcamo was convicted of an aggravated felony and sentenced
to less than five years of imprisonment. Therefore, he is
presumed to have been convicted of a particularly serious crime.
Id. Carcamo has raised no argument before the BIA or this Court
to rebut this presumption. 6 Accordingly, we find no error in the
BIA’s determination that Carcamo is ineligible for withholding
of removal.
Finally, Carcamo seeks deferral of removal under the CAT.
See 8 C.F.R. §§ 208.16(c), (d), 208.17(a), 208.18(b)(1).
However, because Carcamo is a “criminal alien[]” under the INA,
this Court lacks jurisdiction to review the factual conclusions
6
Carcamo’s only argument for why he was not convicted of a
particularly serious crime is that his conviction was not an
aggravated felony, an argument we have rejected.
20
reached by the immigration judge or the BIA in a final order of
removal. 8 U.S.C. § 1252(a)(2)(C), (D). Our jurisdiction in
this case is limited to the review of “constitutional claims or
questions of law.” Id. § 1252(a)(2)(D).
Carcamo’s only challenge to the denial of relief under the
CAT is that the immigration judge and the BIA “clearly erred in
finding that Mr. Carcamo did not meet his burden of proof in
establishing that it is more likely than not that he would be
tortured by the government or their acquiescence or willful
blindness.” Petitioner’s Br. at 27. This factual argument is
not cognizable in this Court. See Hernandez-Nolasco v. Lynch,
807 F.3d 95, 99 (4th Cir. 2015); Saintha v. Mukasey, 516 F.3d
243, 248–51 (4th Cir. 2008). Carcamo’s petition for review of
the denial of his request for deferral of removal under the CAT
is therefore dismissed.
III.
In conclusion, D.C. Code § 48-904.01(a) is divisible, and
the modified categorical approach thus applies. Carcamo’s
record of conviction indicates that he was convicted of
attempted possession with intent to distribute cocaine. Because
any violation of the D.C. statute involving cocaine is
punishable as a felony under the CSA, the BIA correctly
determined that Carcamo was convicted of an aggravated felony
under the INA. In light of his status as an aggravated felon,
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we deny Carcamo’s petition for review as it relates to the BIA’s
denial of his applications for cancellation of removal, asylum,
and withholding of removal, and dismiss his petition for review
for lack of jurisdiction as it pertains to deferral of removal
under the CAT.
PETITION FOR REVIEW DENIED IN PART
AND DISMISSED IN PART
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