               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 14a0346n.06

                                      Case No. 13-3881
                                                                                   FILED
                         UNITED STATES COURT OF APPEALS                         Apr 30, 2014
                                                                           DEBORAH S. HUNT, Clerk
                              FOR THE SIXTH CIRCUIT


                                                  )
ANTHONY ROMANUS LUAMBANO,                         )
                                                  )
       Petitioner,                                )
                                                  )      ON PETITION FOR REVIEW
v.                                                )      FROM THE UNITED STATES
                                                  )      BOARD   OF  IMMIGRATION
ERIC H. HOLDER, JR., Attorney General,            )      APPEALS
                                                  )
       Respondent.                                )
                                                  )      OPINION


BEFORE: MERRITT, COOK, and DONALD, Circuit Judges.


       BERNICE B. DONALD, Circuit Judge. Anthony Romanus Luambano (“Petitioner”)

petitions for review of the Board of Immigration Appeals (“BIA”) decision dismissing his

appeal. The BIA upheld the immigration judge’s (“IJ”) denial of Petitioner’s application for

withholding of removal under the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1101-

1537, as well as his application for both withholding and deferral of removal under the United

Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or

Punishment (“CAT”), Apr. 18, 1988, 108 Stat. 382, 1265 U.N.T.S. 85. For the following

reasons, we DENY the petition for review in part and DISMISS it in part.
Case No. 13-3881
Luambano v. Holder

                                                 I.


       The present appeal marks the second time that Petitioner has sought review in this Court.

See Kiegemwe v. Holder, 427 F. App’x 473 (6th Cir. 2011) (granting the petition for review and

remanding to the BIA for further proceedings on petitioners’ asylum claims). Because the facts

relevant to this appeal occurred after our prior decision, however, we will not recount the earlier

facts and procedural history here.


       On January 11, 2012, following this Court’s decision in Kiegemwe to remand his case to

the BIA, Petitioner, a native and citizen of Tanzania, was convicted of delivering or

manufacturing, or possessing with intent to deliver, between five and forty-five kilograms of

marijuana in violation of Michigan Compiled Laws section 333.7401(2)(d)(ii). The parties both

argued to the BIA, albeit for different reasons, that remand to the IJ was appropriate. The BIA

remanded the case to the IJ on April 26, 2012.


       On remand, the Department of Homeland Security charged that Petitioner’s drug

trafficking conviction also made him removable as an alien convicted of an aggravated felony

under 8 U.S.C. § 1227(a)(2)(A)(iii). The IJ sustained this additional charge. Because the

aggravated felony conviction precluded Petitioner from seeking asylum, he applied for

withholding of removal under the INA as well as withholding and deferral of removal under the

CAT. The IJ denied his applications on March 4, 2013, finding that Petitioner’s conviction for a

particularly serious crime under 8 U.S.C. § 1231(b)(3)(B)(ii) precluded withholding of removal

under both the INA and CAT and that Petitioner failed to meet his burden of proof for deferral of

removal under the CAT. Petitioner appealed to the BIA, and the BIA dismissed the appeal.

Petitioner then sought review in this Court.

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                                                II.


                                                A.


       Petitioner concedes that his conviction under Michigan Compiled Laws section

333.7401(2)(d)(ii) is an aggravated felony. Consequently, 8 U.S.C. § 1252(a)(2)(C) and (D)

limit this Court’s jurisdiction. Tran v. Gonzales, 447 F.3d 937, 940 (6th Cir. 2006). Subsection

(C) “precludes courts from reviewing any ‘final order of removal against an alien who is

removable by reason of having committed a criminal offense covered in section . . .

1227(a)(2)(A)(iii) [convicted of an aggravated felony].’” Id. (alteration in original) (quoting 8

U.S.C. § 1252(a)(2)(C)). Subsection (D), however, permits us to “review . . . constitutional

claims or questions of law.” 8 U.S.C. § 1252(a)(2)(D); Tran, 447 F.3d at 940. We apply de

novo review to questions of law. Sad v. INS, 246 F.3d 811, 814 (6th Cir. 2001). Where the BIA

issues a separate written opinion, we review that decision as the final agency determination

except to the extent that the BIA adopted the IJ’s reasoning. Khalili v. Holder, 557 F.3d 429,

435 (6th Cir. 2009).


       “Principles of judicial deference to an agency’s construction of a statute, however,

[further] limit the scope of our inquiry.” Sad, 246 F.3d at 814. The United States Supreme

Court held in INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25 (1999), that the principles derived

from Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984),

apply to the INA. Sad, 246 F.3d at 814. Chevron deference applies “to most if not all of the

statutory scheme created by congressional delegation to the Attorney General and the BIA to

administer and apply the immigration laws,” id., including the sections at issue here. With these

principles in mind, we proceed to review Petitioner’s sole claim that presents a question of law.

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                                                B.


       The INA provides that an alien “convicted . . . of a particularly serious crime is a danger

to the community of the United States” and therefore ineligible for withholding of removal. 8

U.S.C. § 1231(b)(3)(B)(ii).    Department of Justice regulations impose an identical bar for

withholding of removal under the CAT. 8 C.F.R. § 1208.16(d)(2).


       Petitioner argues that the BIA erred when it dismissed his appeal challenging the denial

of his applications for withholding of removal under the INA and CAT on the ground that his

Michigan drug conviction constitutes a particularly serious crime. While the INA does not

define the term “particularly serious crime,” 8 U.S.C. § 1231(b)(3)(B)(iv) provides:

       For purposes of clause (ii), an alien who has been convicted of an aggravated
       felony (or felonies) for which the alien has been sentenced to an aggregate term of
       imprisonment of at least 5 years shall be considered to have committed a
       particularly serious crime. The previous sentence shall not preclude the Attorney
       General from determining that, notwithstanding the length of sentence imposed,
       an alien has been convicted of a particularly serious crime.

Specifically, Petitioner argues that language in § 1231(b)(3)(B)(ii) and (iv) unambiguously

requires an alien to receive a sentence of imprisonment, rather than probation, before the

Attorney General determines that the alien’s conviction is for a particularly serious crime.


       The BIA adopted the IJ’s determination that Petitioner’s “drug conviction is

presumptively a particularly serious crime” based on the Attorney General’s decision in Matter

of Y-L-, 23 I. & N. Dec. 270 (A.G. 2002). The Attorney General designated aggravated felony

convictions for drug trafficking as presumptively particularly serious based on the congressional

delegation of authority found in § 1231(b)(3)(B)(iv). Id. at 273 (“With respect to aggravated

felony convictions for which a lesser sentence has been imposed, however, Congress explicitly

empowered the Attorney General to make the relevant determination.”). In order for Petitioner
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to succeed on his legal challenge, then, we must either agree that the language of

§ 1231(b)(3)(B)(ii) or (iv) unambiguously requires an alien to receive a term of imprisonment or

conclude that the Attorney General’s decision in Matter of Y-L- is based on an impermissible

construction of the statute. Chevron, 467 U.S. at 842-43.


       Petitioner raises three arguments in support of his position that the unambiguous

language of § 1231(b)(3)(B)(ii) or (iv) requires an alien to receive a term of imprisonment. None

of these arguments persuades us, however, because our precedential decision in Hamama v. INS,

78 F.3d 233 (6th Cir. 1996), forecloses them. The Hamama panel reasoned:

       The legislative history [of the version of § 1231(b)(3)(b)(ii) then in effect] . . .
       indicates that the “particularly serious crime” concept is the codification of
       federal treaty obligations under the Multilateral Protocol Relating to the Status of
       Refugees, an agreement to which the United States is a party. In fact, the phrase
       “having been convicted by a final judgment of a particularly serious crime,
       constitutes a danger to the community” is the very language of Article 33 of the
       Protocol. Unfortunately, neither the Protocol itself nor its handbook defines
       “particularly serious.” We consequently conclude that Congress has expressed no
       clear intent regarding the meaning of “particularly serious crime” . . . .

Id. at 239 (citations omitted). This Court thus has held that Congress expressed no clear intent

on the meaning of particularly serious crime and “explicitly direct[ed] the Attorney General to

determine whether an alien has been convicted of” such a crime. Id. We accordingly must give

“controlling weight” to Matter of Y-L- unless the Attorney General’s decision is “arbitrary,

capricious, or manifestly contrary to the statute.” Chevron, 467 U.S. at 844.


       An agency determination is not arbitrary and capricious unless

       the agency has relied on factors which Congress has not intended it to consider,
       entirely failed to consider an important aspect of the problem, offered an
       explanation for its decision that runs counter to the evidence before the agency, or
       is so implausible that it could not be ascribed to a difference in view or the
       product of agency expertise.



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Novatchinski v. Holder, 516 F. App’x 526, 529 (6th Cir. 2013) (quoting City of Cleveland v.

Ohio, 508 F.3d 827, 838 (6th Cir. 2007)). Matter of Y-L- is not arbitrary and capricious under

this standard. First, the Attorney General did not rely on factors that Congress did not intend

him to consider because Congress explicitly delegated to the Attorney General the discretion to

determine whether an alien’s conviction constitutes a particularly serious crime “notwithstanding

the length of sentence imposed.” 8 U.S.C. § 1231(b)(3)(B)(iv); Hamama, 78 F.3d at 239.

Second, the Attorney General considered important aspects of the problem, such as inconsistent

and illogical results flowing from the BIA’s “individualized, and often haphazard, assessment as

to the ‘seriousness’ of an alien defendant’s crime,” Matter of Y-L-, 23 I. & N. Dec. at 273, “[t]he

devastating effects of drug trafficking offenses on the health and general welfare, not to mention

national security, of” the United States, and “the possibility of the very rare case where an alien

may be able to demonstrate extraordinary and compelling circumstances that justify treating a

particular drug trafficking crime” as not particularly serious. Id. at 276. Finally, the Attorney

General offered a thorough explanation of his reasoning that is neither contrary to the evidence

nor implausible. See id. at 273-77.


       In short, Matter of Y-L- is exactly the sort of agency determination to which Chevron

requires us to give controlling weight. We therefore hold that the BIA properly dismissed

Petitioner’s appeal of the denial of his applications for withholding of removal under the INA

and CAT.


                                                C.


       Petitioner also seeks review of the BIA’s dismissal of his appeal challenging the denial of

his application for deferral of removal under the CAT. He argues that “evidence in the record

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clearly establishes that [he is] more likely than not to face torture if removed to Tanzania.”

Pet’r. Br. at 8. But this claim raises a factual question, and our decisions recognize that we lack

jurisdiction to consider it under 8 U.S.C. § 1252(a)(2)(C) and (D). Tran, 447 F.3d at 943 (citing

Hamid v. Gonzales, 417 F.3d 642 (7th Cir. 2005)) (“Pursuant to § 1252(a)(2)(C) and (D), our

review of [the petitioner’s] CAT claim is limited to questions of law or constitutional issues.

Therefore, our jurisdiction is limited to the legal issues [the petitioner] presents.”); see also

Bushati v. Gonzales, 214 F. App’x 556, 559 (6th Cir. 2007) (“The issue of whether substantial

evidence supports the immigration judge’s finding that [petitioner] did not establish that he

would likely be subject to torture upon removal . . . is clearly a factual determination. As such,

the claim falls outside the jurisdictional purview of this Court and must be dismissed.”). We

therefore dismiss this portion of the petition for review.


                                                 III.


       We DENY the petition for review in part and DISMISS it in part.




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