                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 07-2205



MUSTAFA WAFFI,

                 Petitioner,

          v.


MICHAEL B. MUKASEY, Attorney General,

                 Respondent.



On Petition for Review of an Order of the Board of Immigration
Appeals.


Submitted:   June 18, 2008                   Decided:   July 3, 2008


Before GREGORY and DUNCAN, Circuit Judges, and WILKINS, Senior
Circuit Judge.


Petition denied by unpublished per curiam opinion.


Thomas A. Elliot, Fabienne Chatain, Thomas H. Tousley, ELLIOT &
MAYOCK, Washington, D.C., for Petitioner.    Gregory G. Katsas,
Acting Assistant Attorney General, David V. Bernal, Assistant
Director, Anthony P. Nicastro, Office of Immigration Litigation,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Mustafa Waffi, a native and citizen of Afghanistan,

petitions for review of an order of the Board of Immigration

Appeals (“Board”), finding he was removable and not eligible for

withholding     from    removal,   and     adopting   and    affirming   the

immigration judge’s decision granting him deferral of removal to

Afghanistan under the Convention Against Torture.            The only issue

in the petition for review is whether Waffi’s conviction under

Virginia law for taking indecent liberties with a child, Va. Code.

Ann. § 18.2-370 (Supp. 2007), was properly considered by the Board

to be sexual abuse of a minor.       We deny the petition for review.

            Although this court typically lacks jurisdiction over

petitions for review filed by criminal aliens such as Waffi, see 8

U.S.C.A. § 1252(a)(2)(C) (West 2005), we retain jurisdiction to

consider constitutional claims or questions of law raised in a

petition for review.      § 1252(a)(2)(D); Mbea v. Gonzales, 482 F.3d

276, 278 n.1 (4th Cir. 2007).

            We note the Board properly considered the question of

whether Waffi’s conviction could be considered sexual abuse of a

minor by using the categorical approach.          Mbea, 482 F.3d at 279.

Under this approach, the court “look[s] only to the statutory

definition of the state crime and the fact of conviction to

determine     whether   the   conduct    criminalized   by    the   statute,

including the most innocent conduct, qualifies as [sexual abuse of


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a minor].”    United States v. Diaz-Ibarra, 522 F.3d 343, 348 (4th

Cir. 2008).    We agree with the Board’s conclusion.           We find the

Virginia statute can be considered sexual abuse of a minor under

the   categorical   approach   because      the   statute    entails    “the

perpetrator’s physical or nonphysical misuse or maltreatment of a

minor for a purpose associated with sexual gratification.”             Id. at

352 (internal quotation marks omitted).

          Accordingly,   we    deny   the   petition   for    review.     We

dispense with oral argument because the facts and legal contentions

are adequately presented in the materials before the court and

argument would not aid the decisional process.



                                                            PETITION DENIED




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