17-726 Thompson v. Whitaker BIA Renner, IJ A099 113 000

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 18th day of December, two thousand 5 eighteen. 6 7 PRESENT: 8 DENNIS JACOBS, 9 ROBERT D. SACK, 10 SUSAN L. CARNEY, 11 Circuit Judges. 12 _____________________________________ 13 14 ORA CLEMENTINE THOMPSON, AKA 15 ABRIANNA R. TINGLE, AKA ORA 16 THOMPSON, 17 Petitioner, 18 19 v. 17-726 20 NAC 21 MATTHEW G. WHITAKER, ACTING 22 UNITED STATES ATTORNEY GENERAL, 23 Respondent. 24 _____________________________________ 25 26 FOR PETITIONER: Nicholas J. Mundy, Brooklyn, NY. 27 28 FOR RESPONDENT: Chad A. Readler, Acting Assistant 29 Attorney General; M. Jocelyn Lopez 30 Wright, Senior Litigation Counsel; 31 Anna Juarez, Trial Attorney, 32 Office of Immigration Litigation, 1 United States Department of 2 Justice, Washington, DC. 3 4 UPON DUE CONSIDERATION of this petition for review of a

5 Board of Immigration Appeals (“BIA”) decision, it is hereby

6 ORDERED, ADJUDGED, AND DECREED that the petition for review

7 is DENIED IN PART AND DISMISSED IN PART.

8 Petitioner Ora Clementine Thompson, a native and citizen

9 of Dominica, seeks review of a February 24, 2017, decision of

10 the BIA affirming an October 4, 2016, decision of an

11 Immigration Judge (“IJ”) denying Thompson’s application for

12 withholding of removal and relief under the Convention

13 Against Torture (“CAT”). In re Ora Clementine Thompson, No.

14 A 099 113 000 (B.I.A. Feb. 24, 2017), aff’g No. A 099 113 000

15 (Immig. Ct. N.Y. City Oct. 4, 2016). We assume the parties’

16 familiarity with the underlying facts and procedural history

17 in this case.

18 Because Thompson’s removal order is based on criminal

19 convictions, including an aggravated felony and controlled

20 substance offense, our jurisdiction is limited to

21 “constitutional claims or questions of law.” 8 U.S.C.

22 § 1252(a)(2)(C), (D). We review any such claims de novo.

23 Pierre v. Holder,

(2d Cir. 2009). We have

24 reviewed both the IJ’s and BIA’s decisions “for the sake of

2 1 completeness.” Wangchuck v. Dep’t of Homeland Sec.,

524, 528 (2d Cir. 2006).

3 Removability

4 Thompson argues that her order of removal should be

5 vacated because Harbin v. Sessions,

(2d Cir.

6 2017), changed our analysis regarding controlled substance

7 offenses. We have jurisdiction to review whether a

8 conviction is an aggravated felony, see Pierre,

772, but we find no error in the agency’s determination and

10 deny the petition to the extent it challenges removability.

11 Harbin held that New York Penal Law (“NYPL”) § 220.31 is

12 not a drug trafficking aggravated felony because the New York

13 definition of “controlled substance” is broader than the

14 federal definition.

. However, Thompson was

15 convicted of controlled substance offenses under NYPL

16 §§ 220.39(1) and 220.44(2), which criminalize sale of a more

17 discrete set of substances. Thompson has not alleged that

18 any controlled substance criminalized under those statutes is

19 not also included in the federal controlled substance

20 schedules. Thompson’s convictions for NYPL §§ 220.39(1) and

21 220.44(2) are therefore aggravated felonies. See Pascual v.

22 Holder,

(2d Cir. 2013), aff’d on reh’g, 723

(2d Cir. 2013) (holding that a conviction for sale

24 of a controlled substance under § 220.39(1) is an aggravated 3 1 felony). Because these convictions are aggravated felonies,

2 the criminal bar applies:

(a)(2)(C). So (as

3 discussed below) the petition is dismissed in remaining part

4 as to withholding of removal and CAT relief.

5 Withholding of Removal

6 The agency did not commit legal or constitutional error

7 in concluding that Thompson was barred from withholding of

8 removal because she was convicted of a particularly serious

9 crime. Aliens convicted of “particularly serious crime[s]”

10 are statutorily ineligible for withholding of removal. 8

(b)(3)(B)(ii). Presumptively, aggravated

12 felony drug trafficking offenses are particularly serious.

13 In re Y-L-,

(B.I.A. 2002), overruled

14 on other grounds by Khouzam v. Ashcroft,

, 171

15 (2d Cir. 2004). Thompson’s convictions for NYPL §§ 220.39(1)

16 and 220.44(2) are aggravated felony drug trafficking

17 offenses. See Pascual,

.

18 To overcome the presumption that her aggravated felony

19 drug trafficking convictions were particularly serious,

20 Thompson had to show “extraordinary and compelling

21 circumstances” justifying a “rare” deviation from the

22 presumption. In re Y-L-,

. At minimum,

23 Thompson had to show that her convictions involved:

4 1 (1) a very small quantity of controlled substance; 2 (2) a very modest amount of money paid for the drugs 3 in the offending transaction; (3) merely peripheral 4 involvement by the alien in the criminal activity, 5 transaction, or conspiracy; (4) the absence of any 6 violence or threat of violence, implicit or 7 otherwise, associated with the offense; (5) the 8 absence of any organized crime or terrorist 9 organization involvement, direct or indirect, in 10 relation to the offending activity; and (6) the 11 absence of any adverse or harmful effect of the 12 activity or transaction on juveniles. 13 14

at 276–77.

15 Here, the agency applied the factors, acknowledged

16 Thompson’s testimony regarding the circumstances of her

17 convictions, and concluded that Thompson failed to overcome

18 the presumption. Because Thompson acknowledges that the

19 agency applied the proper factors and challenges only the

20 agency’s weighing of the facts, we lack jurisdiction to

21 further consider the denial of withholding of removal. See

22 Nethagani v. Mukasey,

(2d Cir. 2008)

23 (reviewing particularly serious crime determination as to

24 whether

25 “the BIA properly applied its own precedent” but not reviewing

26 the BIA’s weighing of the factors).

27 CAT Deferral

28 An applicant for CAT deferral must “establish that it is

29 more likely than not that . . . she would be tortured if

30 removed to the proposed country of removal.” 8 C.F.R. 5 1 §§ 1208.16(c)(2), 1208.17(a). “Torture is defined as any act

2 by which severe pain or suffering, whether physical or mental,

3 is intentionally inflicted on a person . . . by or at the

4 instigation of or with the consent or acquiescence of a public

5 official or other person acting in an official capacity.”

6

(a)(1).

7 Thompson’s convictions constrain our review to

8 “constitutional claims or questions of law.”

1252(a)(2)(C), (D); Ortiz-Franco v. Holder,

, 86

10 (2d Cir. 2015). Thompson has raised no constitutional claim

11 or question of law regarding the agency’s denial of CAT

12 protection. Instead, Thompson argues, “this is a simple case

13 of the [agency] misapplying the facts to the law.” While

14 legal error may occur where the agency “totally overlook[s]”

15 or “seriously mischaracterize[s]” evidence, Thompson has

16 pointed to no evidence that the agency overlooked. Mendez

17 v. Holder,

(2d Cir. 2009); see Ortiz-Franco,

18

n.2. And the likelihood of a future event is

19 a finding of fact. Hui Lin Huang v. Holder,

,

20 134 (2d Cir. 2012). The IJ acknowledged that homosexual

21 conduct is criminalized in Dominica and that there have been

22 incidents in which the law had been applied to women, but

23 relied on more recent reports—the 2013 and 2015 State

24 Department Reports—that the government rarely enforced the 6 1 law. Because Thompson has pointed to no evidence that the

2 agency mischaracterized or ignored, we lack jurisdiction to

3 further review the agency’s factual finding that Thompson did

4 not demonstrate that it is more likely than not she would be

5 tortured. See

(a)(2)(C); Hui Lin Huang, 677

6 F.3d at 134.

7 Thompson has raised no constitutional question or

8 question of law and challenges only the agency’s factual

9 findings and weighing of evidence. This Court is therefore

10 without jurisdiction to further review the agency’s decision

11 denying her CAT protection. See Ortiz-Franco,

86.

13 For the foregoing reasons, the petition for review is

14 DENIED IN PART AND DISMISSED IN PART. As we have completed

15 our review, the stay of removal that the Court previously

16 granted in this petition is VACATED. Any pending request for

17 oral argument in this petition is DENIED in accordance with

18 Federal Rule of Appellate Procedure 34(a)(2), and Second

19 Circuit Local Rule 34.1(b).

20 FOR THE COURT: 21 Catherine O’Hagan Wolfe, Clerk

7