NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 10-2582 ___________

NIGEL TERRENCE DAVIS MUIR, Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES, Respondent ____________________________________

On Petition for Review of Order of the Board of Immigration Appeals (Agency No. A42 377 781) Immigration Judge: Honorable Walter A. Durling ____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a) December 7, 2010 Before: BARRY, JORDAN and GARTH, Circuit Judges

(Opinion filed: December 9, 2010) ___________

OPINION ___________

PER CURIAM

Nigel Muir, proceeding pro se, petitions for review of a Board of Immigration

Appeals (“BIA”) decision dismissing his appeal of an Immigration Judge’s (“IJ”) decision ordering his removal to Panama. For the reasons discussed below, we will deny

the petition for review.

Muir, a native and citizen of Panama, was admitted to the United States as a

lawful permanent resident in 1991, when he was eleven years old. The Department of

Homeland Security (“DHS”) issued a notice to appear in 2009 charging that Muir was

subject to removal from the United States because he had been convicted of an

aggravated felony, as defined in

(a)(43)(B), and because he had been

convicted of violating a law relating to a controlled substance. In support of these

charges, DHS alleged that Muir had two convictions in Delaware state court for

possession with intent to deliver cocaine in violation of

.

The IJ found Muir removable as charged, noting that his convictions in state court

constitute aggravated felony drug trafficking offenses. Concluding that there was no

discretionary relief available, the IJ ordered Muir’s removal to Panama. The BIA

dismissed Muir’s appeal. The BIA rejected Muir’s argument that his state drug

convictions did not constitute aggravated felonies. The BIA also rejected Muir’s

contention that he had received ineffective assistance of counsel because counsel had

failed to file an application for asylum, withholding of removal, and protection under the

Convention Against Torture on his behalf. This petition for review followed.

We have jurisdiction pursuant to

(a). Because Muir was found

removable for having committed an aggravated felony, our review is limited to questions of law and constitutional claims. Kaplun v. Att’y Gen.,

(3d Cir. 2010).

Whether Muir’s convictions qualify as aggravated felonies is a question of law subject to

plenary review. Thomas v. Att’y Gen., -- 3d Cir. -- ,

(3d Cir. Oct.

26, 2010). Similarly, our review of Muir’s claim of ineffective assistance of counsel,

which is grounded in the Fifth Amendment right to due process, is de novo. Fadiga v.

Att’y Gen.,

(3d Cir. 2007).

We have adopted two routes advanced by the BIA for determining when a state

drug offense constitutes an aggravated felony under

(a)(43)(B). Thomas,

. Under the “illicit trafficking” route, a state drug conviction will

not constitute an aggravated felony unless the offense is a felony under the law of the

convicting sovereign and the offense contains a trafficking element.

Under the

“hypothetical federal felony” route, a state drug conviction constitutes an aggravated

felony if the offense is punishable as a felony under the Controlled Substances Act,

et seq. (“CSA”).

Muir argues in his brief that his state drug

convictions do not constitute aggravated felonies because they do not contain a

trafficking element. The Government contends that Muir’s argument is irrelevant

because the BIA concluded that Muir was convicted of an aggravated felony under the

“hypothetical federal felony” route, not the “illicit trafficking” route.

The BIA’s decision reflects that the BIA found that Muir’s convictions constitute

aggravated felonies under the “hypothetical federal felony” route. Although Muir may believe that the BIA found that his crime contained a trafficking element based on

references to “illicit trafficking” in its decision, these references were to the statutory

language of § 1101(a)(43)(B). For substantially the reasons stated in the BIA’s decision,

Muir’s offenses are punishable as felonies under the CSA and thus constitute aggravated

felonies.1

Muir also asserts that his attorney rendered ineffective assistance by failing to file

an application for asylum, withholding of removal, and protection under the Convention

Against Torture on his behalf. This claim lacks merit. Muir does not dispute the BIA’s

finding that he did not satisfy the procedural requirements for an ineffective assistance of

counsel claim. In addition, the administrative record reflects that Muir’s counsel

obtained a continuance of the proceedings to afford Muir time to gather facts supporting

an asylum or withholding of removal claim. Muir’s counsel later informed the IJ that an

application would not be submitted. Although Muir was present at the hearing, he did

not tell the IJ that he wished to seek asylum or withholding of removal or that he had a

fear of returning to Panama. Muir also does not identify in his brief the basis of a claim

for asylum or withholding of removal.2

1 Although not stated by the BIA, Muir’s state convictions are punishable as felonies under the CSA because a violation of

(a)(1), which prohibits. possession with intent to distribute a controlled substance, including cocaine, is punishable by a term of imprisonment of over one year. See

(b)(1)(C); Gerbier v. Holmes,

(3d Cir. 2002). 2 In addition, Muir is not eligible for asylum because his convictions constitute aggravated felonies. Jeune v. Att’y Gen.,

(3d Cir. 2007). Accordingly, we will deny the petition for review.