NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 12-2953
___________
GERMAN RENE CARDENAS PERDOMO,
a/k/a German Cardenas,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A036-859-940)
Immigration Judge: Honorable Leo Finston
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
June 13, 2013
Before: FUENTES, VANASKIE and VAN ANTWERPEN, Circuit Judges
(Opinion filed June 14, 2013)
___________
OPINION
___________
PER CURIAM
German Rene Cardenas Perdomo (“Cardenas”) petitions for review of the Board
of Immigration Appeals‟ (“BIA” or “Board”) dismissal of his appeal. For the following
reasons, we will deny the petition for review.
I.
Cardenas, a citizen of El Salvador, entered the United States as a lawful permanent
resident in 1979. In 2003, he pled guilty to criminal sale of cocaine in the fourth degree,
in violation of N.Y. Penal Law § 220.34(1), and was sentenced to six months‟
imprisonment followed by five years‟ probation. In 2008, he was resentenced to one year
of imprisonment for violating his probation after pleading guilty to criminal possession of
cocaine in the seventh degree, in violation of N.Y. Penal Law § 220.03. Cardenas was
later served with a Notice to Appear charging him with being removable under 8 U.S.C.
§ 227(a)(2)(A)(iii) on the basis of an aggravated felony conviction as defined by 8 U.S.C.
§ 1101(a)(43)(B), and under 8 U.S.C. § 1227(a)(2)(B)(i) on the basis of a controlled
substance violation.
At a hearing before the Immigration Judge (“IJ”), Cardenas admitted the factual
allegations but denied that he was removable for having committed an aggravated felony.
The IJ sustained the aggravated felony charge of removability but granted him two
continuances to pursue post-conviction relief for his 2003 conviction under Padilla v.
Kentucky, 559 U.S. 356 (2010). At his merits hearing, the IJ determined that Cardenas‟
aggravated felony conviction rendered him ineligible for asylum and withholding of
removal and denied his request for relief under the Convention Against Torture (“CAT”)
because he had not demonstrated that he would likely face torture upon his return to El
Salvador.
On appeal to the BIA, Cardenas asserted that the IJ erred in denying his “claim of
fear,” erred in denying him deferral of removal under the CAT, and abused his discretion
2
by denying his request for an “adjournment” to continue to pursue post-conviction relief.
The Board dismissed his appeal, noting that he had not disputed the IJ‟s finding of
removability based on his aggravated felony and controlled substance convictions. The
BIA further determined that the IJ properly denied Cardenas‟ asylum and withholding of
removal applications because of his disqualifying convictions, and that his request for
deferral of removal under the CAT was proper because he had not shown that Salvadoran
criminal gangs would likely torture him. Additionally, the Board noted that his claim
regarding a continuance was not properly before it because he had not requested a
continuance at his merits hearing and alternatively, because he had not shown good cause
for such a continuance.
II.
Generally, we lack jurisdiction to review a final order of removal against an alien,
like Cardenas, who is removable for having been convicted of certain criminal offenses.
8 U.S.C. § 1252(a)(2)(C). We retain jurisdiction, however, to review any constitutional
or legal questions raised in his petition for review. See 8 U.S.C. § 1252(a)(2)(D); Cruz v.
Att‟y Gen., 452 F.3d 240, 246-47 (3d Cir. 2006).
3
III.
Cardenas first challenges whether his conviction for criminal sale of cocaine is an
aggravated felony. We have jurisdiction to review this question.1 Jeune v. Att‟y Gen.,
476 F.3d 199, 201 (3d Cir. 2007) (exercising plenary review over petitioner‟s legal
argument that he was not convicted of aggravated felony). Under 8 U.S.C.
§ 1227(a)(43)(B), a state drug conviction is an aggravated felony if it would be
punishable as a felony under the federal Controlled Substances Act (“CSA”). See
Thomas v. Att‟y Gen., 625 F.3d 134, 142 (3d Cir. 2010); Evanson v. Att‟y Gen., 550
F.3d 284, 288-89 (3d Cir. 2008).
We apply the formal categorical approach to determine whether Cardenas‟
conviction would be punishable as a felony under the CSA. Moncrieffe v. Holder, 133 S.
Ct. 1678, 1684-85 (2013). Application of this approach requires us to examine N.Y.
Penal Law § 220.34(1), without considering the particular facts underlying Cardenas‟
conviction, to determine whether a violation is punishable as a felony under the CSA.
Garcia v. Att‟y Gen., 462 F.3d 287, 291 (3d Cir. 2006). Under § 220.34(1), “[a] person is
guilty of criminal sale of a controlled substance in the fourth degree when he knowingly
1
The Government asserts that we lack jurisdiction to consider this argument because
Cardenas failed to raise it on appeal to the BIA. However, the Board addressed the issue
sua sponte, by holding that Cardenas was not eligible for asylum or withholding of
removal because he had “been convicted of a disqualifying „particularly serious crime,‟”
a determination made after a finding that the petitioner has been convicted of an
aggravated felony. See 8 U.S.C. § 1231(b)(3)(B); Alaka v. Att‟y Gen., 456 F.3d 88, 105
(3d Cir. 2006) (offense must be aggravated felony in order to be classified as particularly
serious crime); see also Lin v. Att‟y Gen., 543 F.3d 114, 123-24 (3d Cir. 2008) (noting
that when the BIA sua sponte addresses an otherwise unexhausted issue, failure to raise
the issue on administrative appeal may be excused).
4
and unlawfully sells a narcotic preparation.” “Sell” is defined to mean “sell, exchange,
give or dispose of to another, or to offer or agree to do the same.” N.Y. Penal Law
§ 220.00. Therefore, the statute under which Cardenas was convicted in 2003 applies to
any transfer of cocaine. See People v. Starling, 650 N.E.2d 387, 390 (N.Y. 1995) (by
enacting broad definition of “sell,” legislature evinced clear intent to include any form of
transfer of controlled substance).
Our review leads us to conclude that Cardenas‟ 2003 felony conviction for
criminal sale of cocaine under N.Y. Penal Law § 220.34(1) corresponded to the federal
offense of distribution of a controlled substance under 21 U.S.C. § 841(a)(1).2 Under this
statute, “distribute” means “to deliver,” 21 U.S.C. § 802(11), and “deliver” means “the
actual, constructive, or attempted transfer of a controlled substance,” 21 U.S.C. § 802(8).
Furthermore, remuneration is not required to satisfy the requirements of “delivery” or
“distribution” of a controlled substance. See United States v. Wallace, 532 F.3d 126, 129
(2d Cir. 2008). Accordingly, Cardenas‟ 2003 conviction is punishable as a felony under
the CSA because violations of § 841(a)(1) are punishable by a term of imprisonment
greater than one year.3 See 21 U.S.C. § 841(b)(1)(C); Gerbier v. Holmes, 280 F.3d 297,
316 (3d Cir. 2002).
2
Cardenas‟ argument that his conviction for criminal sale of cocaine corresponds to a
misdemeanor conviction for simple possession of cocaine under 18 U.S.C. § 844(a) is
misplaced, as N.Y. Penal Law § 220.34(1) criminalizes drug sales, not drug possession.
3
Even if we were to apply the modified categorical approach, as urged by Cardenas, see
Thomas, 625 F.3d at 143 (applying modified categorical approach to analyze New York
misdemeanor conviction for criminal sale of marijuana), Cardenas has failed to
demonstrate that he did not, by pleading guilty, admit the elements of the offense of
5
Cardenas further alleges that the BIA erred by determining that his conviction for
an aggravated felony rendered him ineligible for withholding of removal.4 An
aggravated felony is a “particularly serious crime” for the purpose of eligibility for
withholding if, as here, the alien is sentenced to less than five years and the Attorney
General exercises his discretion to determine that the crime was “particularly serious.” 8
U.S.C. § 1231(b)(3)(B). A drug trafficking conviction is presumptively a “particularly
serious crime”; however, that presumption may be overcome by showing “extraordinary
and compelling circumstances.”5 Matter of Y-L-, 23 I. & N. Dec. 270, 276 (BIA 2002).
criminal sale of cocaine. Furthermore, he has not argued that the Government failed to
meet its burden of proof by providing the certificate of disposition relating to his 2003
conviction. See 8 U.S.C. § 1229a(c)(3)(B) (listing documents that constitute proof of
criminal conviction).
4
The Government asserts that we also lack jurisdiction to consider this argument because
of Cardenas‟ failure to raise it before the BIA. However, as discussed above in note one,
the BIA sua sponte considered this issue. Accordingly, we excuse Cardenas‟ failure to
raise it in his administrative appeal. See Lin, 543 F.3d at 123-24.
5
Those circumstances, at a minimum, must include:
(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 or threat of violence, implicit or
otherwise, associated with the offense; (5) the absence of any organized
crime or terrorist organization involvement, direct or indirect, in relation to
the offending activity; and (6) the absence of any adverse or harmful effect
of the activity or transaction on juveniles.
Lavira v. Att‟y Gen., 478 F.3d 158, 161-62 (3d Cir. 2007) (quoting Matter of Y-L-, 23 I.
& N. Dec. at 276-77), overruled on other grounds by Pierre v. Att‟y Gen., 528 F.3d 180
(3d Cir. 2008) (en banc). This test is a conjunctive test; accordingly, all circumstances
must be present to warrant a departure. Id. at 162.
6
Here, the BIA reasonably concluded that Cardenas remained ineligible for withholding
because he did not present any evidence of these circumstances to warrant a departure
from the presumption.
As an aggravated felon convicted of a “particularly serious crime,” Cardenas could
only apply for deferral of removal under the CAT. See Khouzam v. Att‟y Gen., 549 F.3d
235, 243 (3d Cir. 2008). We retain jurisdiction to review Cardenas‟ legal questions
regarding his eligibility for CAT relief. See Pierre, 528 F.3d at 184. As an initial matter,
Cardenas‟ arguments that the BIA erred in relying on the “specific intent doctrine” and
by not conducting a “willful blindness” analysis are misplaced, as we have previously
held that “the CAT requires a showing of specific intent” and that “[w]illful blindness can
be used to establish knowledge but it does not satisfy the specific intent requirement in
the CAT.” Id. at 189, 190.
Cardenas also alleges that the BIA failed to consider relevant evidence concerning
whether he established eligibility for deferral of removal.6 Despite the limitations on our
jurisdiction noted above, we may review this claim. See Green, 694 F.3d at 508
(addressing the merits of criminal alien‟s claim that “the IJ and BIA committed legal
6
Cardenas appears to also challenge the weight that the agency gave to his evidence
when evaluating his eligibility for CAT relief. See Green v. Att‟y Gen., 694 F.3d 503,
508 (3d Cir. 2012) ((recognizing that petitioner‟s “real argument is not that relevant
evidence was ignored, but rather that the IJ incorrectly weighed evidence in making
factual determinations.”). However, it is clear that we lack jurisdiction over such a claim.
See Pieschacon-Villegas v. Att‟y Gen., 671 F.3d 303, 309 (3d Cir. 2011) (court lacks
jurisdiction to review criminal alien‟s disagreement with BIA‟s determination that his
evidence is insufficient to demonstrate eligibility for CAT relief.).
7
error by ignoring relevant evidence in the record”). But Cardenas has failed to identify
any specific evidence that was overlooked, and we discern no error.7
We also cannot understand how the IJ violated Cardenas‟ due process rights by
denying his request for another continuance to continue to pursue post-conviction relief
in state court, as he never made such a request at his merits hearing. See Delgado-
Sobalvarro v. Att‟y Gen., 625 F.3d 782, 787 (3d Cir. 2010) (showing of substantial
prejudice required to establish due process violation). Furthermore, his conviction
remains final for immigration purposes despite any pending collateral attack. Paredes v.
Att‟y Gen., 528 F.3d 196, 198-90 (3d Cir. 2008); cf. Chaidez v. United States, 133 S. Ct.
1103, 1105 (2013) (holding that Padilla is not retroactively applicable to cases on
collateral review).
Finally, in his brief, Cardenas appears to assert that his removal would work a
hardship on his children. He did not exhaust this claim before the Board, and we
therefore lack jurisdiction to consider it. See 8 U.S.C. § 1252(d)(1); Castro v. Att‟y Gen.,
671 F.3d 356, 365 (3d Cir. 2012). In any event, we would lack jurisdiction to consider
any discretionary decision, including any “exceptional and extremely unusual” hardship
determination. See 8 U.S.C. § 1252(a)(2)(B)(i); Patel v. Att‟y Gen., 619 F.3d 230, 232
(3d Cir. 2010).
IV.
7
Furthermore, we lack jurisdiction to consider the factual question of whether Cardenas
is likely to be tortured in El Salvador. Kaplun v. Att‟y Gen., 602 F.3d 260, 271 (3d Cir.
2010) (question of what is likely to happen to petitioner if removed is factual). To the
extent that Cardenas alleges that what is likely to happen to him amounts to the legal
8
For the foregoing reasons, we will deny the petition for review. The
Government‟s request to withdraw its motion to dismiss is granted.
definition of torture, the BIA reasonably concluded that it did not. See id. at 271-72.
9