[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
___________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JUNE 13 2007
No. 06-11700
THOMAS K. KAHN
___________________
CLERK
Agency No. A30-230-869
MARCELO MAXIMIANO RODRIGUES,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
_______________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________________
(June 13, 2007)
Before EDMONDSON, Chief Judge, BIRCH and WILSON, Circuit Judges.
PER CURIAM:
Petitioner Marcelo Maximiano Rodrigues (“Rodrigues”) petitions for
review of the Board of Immigration Appeals’ (“BIA”) order, affirming the
Immigration Judge’s (“IJ”) denial of Rodrigues’s application for asylum,
cancellation of removal, and withholding of removal under the Immigration and
Nationality Act (“INA”) and the United Nations Convention Against Torture and
Other Cruel, Inhuman, or Degrading Treatment or Punishment (“CAT”), as well as
deferral of removal under the CAT. 8 U.S.C. §§ 1158, 1229b, 1231, 8 C.F.R. §§
208.16(c), 208.17(a). We lack jurisdiction to hear certain of Rodrigues’s claims
on appeal, and we find no reversible error on his other claims; we therefore deny
the petition.
I. BACKGROUND
Rodrigues, a 32-year old Brazilian native, is a permanent legal resident of
the United States, having lived here since he was very young. In 2004, Rodrigues
pled “no contest” to and was convicted of sale of cocaine, possession of cocaine,
sale of a counterfeit drug, and possession of drug paraphanalia, in violation of
Fla. Stat. Ann. §§ 893.13, 817.563, 893.147. Based on these convictions, the
Department of Homeland Security (“DHS”) initiated removal proceedings; and the
IJ determined that Rodrigues was removable pursuant to INA § 237(a)(2)(A)(iii),
8 U.S.C. § 1227(a)(2)(A)(iii) (removal of an alien “convicted of an aggravated
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felony at any time after admission”), and INA § 237(a)(2)(B)(i), 8 U.S.C. §
1227(a)(2)(B)(i) (removal of an alien convicted of a violation of any law relating
to a controlled substance).1
Rodrigues denied removability and sought various forms of relief, including
withholding of removal, cancellation of removal, and relief under the CAT. He
alleged that he would be subject to persecution upon removal to Brazil because (1)
he would be considered a traitor based on his long-term residence in the U.S.; (2)
the police would consider him to be a drug trafficker; (3) he would be targeted for
his tattoos; and (4) he did not speak Portugese. The IJ denied Rodrigues’s claims
for relief, concluding that Rodrigues was statutorily ineligible for asylum,2
cancellation of removal, and withholding of removal under the INA and the CAT
because his conviction for the sale of cocaine was an aggravated felony under INA
§ 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), and a “particularly serious crime”
under INA § 241(b)(3)(B)(ii), 8 U.S.C. § 1231(b)(B)(3)(ii). The IJ also
determined that no basis existed for concluding that Rodrigues would suffer
1
DHS also alleged that Rodrigues was removable pursuant to INA § 237(a)(2)(A)(ii), 8 U.S.C.
§ 1227(a)(2)(A)(ii) (removal of an alien convicted of two crimes involving moral turpitude), but the
IJ determined that charge could not be sustained.
2
The IJ also indicated that, because Rodrigues’s application was untimely, Rodrigues was not
entitled to asylum .
3
persecution or torture upon removal to Brazil, as required for granting deferral of
removal under the CAT. See 8 C.F.R. § 208.16(c)(2), (4).
The BIA affirmed the IJ’s order of removal, agreeing with the IJ’s
aggravated felony determination and noting that “[n]either the amount of the
controlled substance nor the sale price are relevant to whether the sale of cocaine
is an unlawful act.” And, based on its finding that Rodrigues’s participation in the
drug sale was not “peripheral,” the BIA also agreed that his conviction was a
“particularly serious crime” precluding withholding of removal under the INA.
Last, the BIA confirmed that Rodrigues was not entitled to deferral of removal
under the CAT.
Rodrigues now petitions this court for review of the BIA’s order, advancing
four grounds of error: (1) his criminal defense counsel violated his constitutional
rights by entering a plea of “no contest” on his behalf without knowing
Rodrigues’s alienage; (2) the BIA’s determination that the drug conviction was an
aggravated felony under the INA violated Rodrigues’s due process and equal
protection rights; (3) the BIA erred in finding that Rodrigues’s participation in the
drug crime was not “peripheral”; and (4) the IJ did not apply the correct legal
standard in considering Rodrigues’s claim for deferral of removal under the CAT.
4
In response, the Government argues that we lack jurisdiction to consider
Rodrigues’s petition.
II. STANDARD OF REVIEW
We review questions of our jurisdiction de novo. Gonzalez-Oropeza v. U.S.
Att’y Gen., 321 F.3d 1331, 1332 (11th Cir. 2003). And, “[w]e review only the
BIA’s decision, except to the extent that it expressly adopts the IJ’s opinion.” Al
Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). Our review of the
BIA’s legal conclusions is de novo, but we will defer to the [BIA’s] interpretation
of the INA if it is reasonable. Brooks v. Ashcroft, 283 F.3d 1268, 1272 (11th Cir.
2002).
III. DISCUSSION
A. Jurisdiction
As an initial matter, we lack jurisdiction to consider Rodrigues’s ineffective
assistance claims on his underlying criminal conviction. This Court is not the
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proper forum for such claims, and the record before us does not enable review.
See Mohammed v Ashcroft, 261 F.3d 1244, 1251 (11th Cir. 2001) (noting that we
cannot provide proper remedy where alien seeking to attack collaterally
underlying criminal conviction). In any event, Rodrigues did not raise this claim
before the BIA and thus has failed to exhaust his administrative remedies on this
issue. See Fernandez-Bernal v. Att’y Gen., 257 F.3d 1304, 1317 n.13 (11th Cir.
2001) (stating that exhaustion requirement is jurisdictional).
Our jurisdiction to review Rodrigues’s order of removal is otherwise
limited by the REAL ID Act of 2005, 8 U.S.C. § 1252. Pursuant to section
1252(a)(2)(C), we lack jurisdiction to review “any final order of removal against
an alien who is removable by reason of having committed a [covered] criminal
offense.” One such offense is “a violation of . . . any law . . . relating to a
controlled substance.” INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(ii). The
IJ ordered Rodrigues removed on this basis, and the BIA affirmed that order.
Rodrigues does not challenge the classification of his conviction as a violation of a
controlled substance law. Thus, under section 1252(a)(2)(C), we lack jurisdiction
to review the entire order, except to the extent that the exception in 1252(a)(2)(D)
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applies.3 Under that provision, we retain jurisdiction to decide only constitutional
claims or questions of law. We now turn to Rodrigues’s three remaining
arguments to determine whether they present legal or constitutional issues
permitting our review.
B. The Aggravated Felon Determination
Rodrigues contends that the BIA erred in concluding that he had been
convicted of an “aggravated felony” under the INA – and was thus ineligible for
cancellation of removal pursuant to INA § 240A(a)(3), 8 U.S.C. § 1229b(a)(3).4
Rodrigues says the sale of 1.5 grams of cocaine for $50 cannot constitute “illicit
trafficking in a controlled substance . . . including a drug trafficking crime (as
3
Because subsection (C) limits our review of the entire removal order, we need not address the
Government’s contention that the BIA’s determination that Rodrigues’s drug sale conviction was
a “particularly serious crime” is a discretionary decision, review of which is outside our jurisdiction
under subsection (B). See INA § 242(a)(2)(B), 8 U.S.C. § 1252(a)(2)(B) (“[N]o court shall have
jurisdiction to review . . . any other decision or action of the Attorney General . . . the authority for
which is specified under this subchapter to be in the discretion of the Attorney General”). Regardless
of whether the “particularly serious crime” determination is discretionary or not, we still lack
jurisdiction to review it under subsection (C), except to the extent that it involves a question of law
or constitutional claim. See Petrov v. Gonzales, 464 F.3d 800, 802 (7th Cir. 2006).
4
The BIA also concluded that Rodrigues’s status as an aggravated felon made him ineligble for
asylum. But because the IJ determined that Rodrigues’s application for asylum was untimely, we
lack jurisdiction to review Rodrigues’s asylum claim. See 8 U.S.C. § 1158(a)(2), (3).
7
defined in section 924(c) of title 18).” INA § 101(a)(43)(B), 8 U.S.C. §
1101(a)(43)(B). We disagree.
The Supreme Court recently addressed the issue in Lopez v. Gonzales, 127
S. Ct. 625 (2006). The Court began by stating that “[t]he general phrase ‘illicit
trafficking’ is left undefined, but § 942(c)(2) of Title 18 identifies the subcategory
by defining ‘drug trafficking crime’ as ‘any felony punishable under the
Controlled Substances Act [(“CSA”)].’” Id. at 628. After noting a conflict “about
the proper understanding of conduct treated as a felony by the State . . . but as a
misdemeanor under the CSA,” id. at 629, the Court concluded that “a state offense
constitutes a ‘felony punishable under the [CSA]’” – and thus an aggravated
felony under the INA – “only if it proscribes conduct punishable as a felony under
that federal law.” Id. at 633.
Under the approach announced in Lopez,5 the BIA’s determination that
Rodrigues’s drug crimes qualify as aggravated felonies under the INA was correct.
Among other things, Rodrigues was convicted of the sale of cocaine.6 Contrary to
5
The Government argues that Lopez is inapplicable because, regardless of whether Rodrigues was
convicted of a “drug trafficking crime” under the CSA, his sale convictions were “illicit trafficking”
crimes that qualify as aggravated felonies under the INA. We need not address this contention
because we conclude that Rodrigues’s drug crime would be a felony under the CSA and thus fits
within the arguably narrower “drug trafficking” category.
6
We reject Rodrigues’s assertion that the record does not indicate whether his state convictions
were for sale or possession of cocaine. The record shows that Rodrigues’s sale and possession
8
Rodrigues’s contention, this conduct is a trafficking offense under the CSA: “[I]t
shall be unlawful for any person knowingly or intentionally (1) to manufacture,
distribute, or dispense . . . a controlled substance.” 21 U.S.C. § 841(a)(1)
(emphasis added); see Lopez, 127 S. Ct. at 630 and n.4 (noting that “‘trafficking’
means some sort of commercial dealing” and referencing section 841 as covering
trafficking offenses).
Whether such a violation is a felony or a misdemeanor under the CSA
depends on the “maximum term of imprisonment authorized;” a maximum
sentence of more than one year is a felony, while a lesser sentence is a
misdemeanor. 18 U.S.C. § 3559(a). Section 841(b)(1)(C) sets a maximum penalty
of 20 years’ imprisonment for the sale of a controlled substance listed in schedule
II, such as cocaine. See 21 U.S.C. § 812(c). Because the sale of any amount of
cocaine is therefore “punishable” by more than one year imprisonment,
Rodrigues’s crime is a felony under the CSA.7 Thus, the BIA correctly determined
that Rodrigues is ineligible for cancellation of removal.
convictions were separate charges and that he was adjudicated guilty on both counts.
7
Reference to the sentencing guidelines is also instructive, as they indicate that the sale of even
a small amount of cocaine constitutes a felony under federal law. Under U.S.S.G. §2D1.1(a)(3), (c),
the appropriate offense level for a drug trafficking offense involving less than 25 grams of cocaine
is level 12. Even assuming a Criminal History Category of I, the recommended sentence is 10-16
months. Thus, because the “maximum term of imprisonment authorized” by the sentencing
guidelines is at least 16 months, the sale of even a small amount of cocaine is a federal felony.
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C. The “Particularly Serious Crime” Determination
Rodrigues next argues that his challenge to the BIA’s “particularly serious
crime” determination involves a question of law over which we retain jurisdiction.
We disagree. An alien convicted of a “particularly serious crime” is not eligible
for withholding of removal under the INA or the CAT. INA § 241(b)(3)(B)(ii), 8
U.S.C. § 1231(b)(3)(B)(ii); 8 C.F.R. § 208.16(d)(2). The statute states that the
Attorney General may determine that an alien convicted of an aggravated felony
and sentenced to less than 5 years – such as Rodrigues -- has committed a
“particularly serious crime.” Id. Matters of Y-L, A-G, R-S-R-, 23 I&N Dec. 270
(A.G. 2002), indicates that “all drug trafficking offenses are per se ‘particularly
serious crimes’ under the INA” but sets forth certain criteria that might “justify
treating a particular drug trafficking crime as falling short of that standard.”
Rodrigues does not argue that the standard in Matter of Y-L is legally or
constitutionally infirm. Instead, he – in effect – contends that the BIA misapplied
this standard; this question of application to a set of circumstances is a matter of
fact and discretion, not the legal issue over which we retain jurisdiction. See
Afridi v. Gonzales, 442 F.3d 1212, 1218 (9th Cir. 2006) (stating that, under
section 1252, a reviewing court “cannot reweigh evidence to determine if the
10
crime was particularly serious”); Brue v. Gonzales, 464 F.3d 1227, 1232 (10th Cir.
2006) (same); Ali v. Achim, 468 F.3d 462, 470 (7th Cir. 2006) (“We lack
jurisdiction to review the BIA's exercise of discretion when the agency operates
under the proper legal standard . . . [and] therefore do not address [petitioner’s]
argument that the BIA misapplied its own precedent . . . in its analysis of
[petitioner’s] offense of conviction.”).
D. Deferral of Removal under the CAT
Rodrigues asserts that the IJ wrongly applied the “more likely than not”
standard for deferral of removal under the CAT. But we review the BIA’s order,
not the IJ’s. The BIA did not expressly adopt the IJ’s opinion, but stated that it
agreed with the IJ’s conclusion that Rodrigues had failed to meet his burden of
showing that torture by the Brazilian government was “more likely than not” or a
“clear probability.” These statements correctly reflect an alien’s burden of proof
under the CAT. See 8 C.F.R. §§ 208.16(c)(4), 208.17(a); Sulaiman v. Gonzales,
429 F.3d 347, 351 (1st Cir. 2005) (“ ‘Clear probability’ simply means ‘more likely
than not,’ which is the correct standard for the IJ to apply to [petitioner’s claims
for CAT relief].”); see also INS v. Stevic, 104 S. Ct. 2489, 2498 (1984)
11
(interpreting the standard for withholding of removal under the INA – the same
standard applied to requests for CAT relief , compare 8 C.F.R. § 208.16(b)(2) with
id. § 208.16(c)(2) – and stating, “we do not think there is any serious dispute
regarding the meaning of the clear-probability standard. . . . The question under
that standard is whether it is more likely than not that the alien would be subject to
persecution”). The IJ similarly articulated the correct test throughout her opinion,
and her occasional use of “will” or “would” as shorthand does not establish that
she applied the legal standard incorrectly. Cf. Almaghzar v. Gonzales, 457 F.3d
915, 922-23 (9th Cir. 2006) (stating correct “more likely than not” standard and
then concluding that alien had not shown that he “would be tortured” if returned to
native country). We lack jurisdiction otherwise to review the IJ’s or BIA’s
application of that standard to the facts of Rodrigues’s case. See Petrov, 464 F.3d
at 801 (noting that the jurisdictional bar in section 1252(C) provides “no exception
for arguments under the Convention” and stating that “[t]his does not mean that
the Convention may be ignored; it means only that the administrative resolution of
disputes about the risk a criminal alien faces in his native land is conclusive”).
Thus, we must affirm the BIA’s decision on this issue.
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IV. CONCLUSION
For the foregoing reasons, we lack jurisdiction to consider Rodrigues’s
ineffective assistance, asylum, and withholding of removal claims. And we
conclude that the BIA properly applied the INA in rejecting Rodrigues’s
application for cancellation of removal and deferral of removal under the CAT.
Accordingly, Rodrigues’s petition for review of the removal order is denied.
PETITION DENIED.
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