     16-2516
     Hilario-Hilario v. Sessions
                                                                                       BIA
                                                                                Bukszpan, IJ
                                                                               A055 015 119

                               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 for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   13th day of October, two thousand seventeen.
 5
 6   PRESENT:
 7            JOSÉ A. CABRANES,
 8            RAYMOND J. LOHIER, JR.,
 9            SUSAN L. CARNEY,
10                 Circuit Judges.
11   _____________________________________
12
13   BILMA ALTAGRACIA HILARIO-HILARIO,
14             Petitioner,
15
16                       v.                                          16-2516
17                                                                   NAC
18   JEFFERSON B. SESSIONS III, UNITED
19   STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                      Joshua Bardavid, New York, NY.
24
25   FOR RESPONDENT:                      Chad A. Readler, Acting Assistant
26                                        Attorney General; Papu Sandhu,
27                                        Assistant Director; Victor M.
28                                        Lawrence, Senior Litigation
29                                        Counsel, Office of Immigration
30                                        Litigation, United States
31                                        Department of Justice, Washington,
32                                        DC.
 1       UPON DUE CONSIDERATION of this petition for review of a

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

 3   ORDERED, ADJUDGED, AND DECREED that the petition for review is

 4   DENIED.

 5       Petitioner Bilma Altagracia Hilario-Hilario, a native and

 6   citizen of the Dominican Republic, seeks review of a June 24,

 7   2016, decision of the BIA, affirming a July 30, 2015, decision

 8   of an Immigration Judge (“IJ”) denying Hilario-Hilario’s

 9   application for asylum, withholding of removal, and relief

10   under the Convention Against Torture (“CAT”).       In re Bilma

11   Altagracia Hilario-Hilario, No. A055 015 119 (B.I.A. June 24,

12   2016), aff’g No. A055 015 119 (Immig. Ct. N.Y. City July 30,

13   2015).    We assume the parties’ familiarity with the underlying

14   facts and procedural history in this case.

15       Hilario-Hilario was ordered removed based on a conviction

16   for an aggravated felony and controlled substance offense,

17   thereby limiting our jurisdiction to constitutional claims and

18   questions of law.     See 8 U.S.C. § 1252(a)(2)(C), (D).   We

19   review such claims de novo.     Pierre v. Holder, 588 F.3d 767,

20   772 (2d Cir. 2009).    Hilario-Hilario’s aggravated felony

21   conviction bars asylum, see 8 U.S.C. § 1158(b)(2)(A)(ii),
                                     2
1    (b)(2)(B)(i), and she challenges only the denial of withholding

2    of removal and CAT relief.       We find no error in the agency’s

3    denial of those forms of relief.

4          Hilario-Hilario’s conviction bars withholding of removal

5    if it is particularly serious.        8 U.S.C. § 1231(b)(3)(B)(ii).

6    Although her conviction is not per se particularly serious

7    because she was sentenced to only three years’ probation, the

8    agency is authorized to determine whether the conviction is

9    otherwise    particularly      serious.       Id.   § 1231(b)(3)(B);

10   Nethagani v. Mukasey, 532 F.3d 150, 155 (2d Cir. 2008).            We

11   retain jurisdiction to determine whether the agency applied the

12   correct standard.    Nethagani, 532 F.3d. at 154-55.

13         Hilario-Hilario’s aggravated felony conviction involved

14   drug trafficking, and thus        is presumptively particularly

15   serious for the purposes of withholding of removal.         To avoid

16   the   bar,   Hilario-Hilario    had   to   show   “extraordinary   and

17   compelling circumstances” justifying a “rare” deviation from

18   the presumption.    Matter of Y-L-, A-G-, and R-S-R-, 23 I. & N.

19   Dec. 270, 276-77 (B.I.A. 2002), overruled on other grounds by

20   Khouzam v. Ashcroft, 361 F.3d 161, 171 (2d Cir. 2004).        As the

21   agency concluded, Hilario-Hilario offered no evidence “beyond
                                       3
1    her own self-serving testimony,” to rebut the presumption.             She

2    now argues that Matter of Y-L- suggests that “the Attorney

3    General was not referring to misdemeanor convictions” like hers

4    when it held that drug trafficking offenses are presumptively

5    particularly serious.          However, Matter of Y-L- makes no such

6    distinction between felonies and misdemeanors.              Rather, the

7    decision makes clear that a trafficking offense is particularly

8    serious unless the applicant can show, at a minimum, that the

9    conviction involved “(1) a very small quantity of controlled

10   substance; (2) a very modest amount of money paid for the drugs

11   in the offending transaction; (3) merely peripheral involvement

12   by   the   alien   in    the    criminal   activity,    transaction,   or

13   conspiracy; (4) the absence of any violence or threat of

14   violence, implicit or otherwise, associated with the offense;

15   (5) the absence of any organized crime or terrorist organization

16   involvement, direct or indirect, in relation to the offending

17   activity; and (6) the absence of any adverse or harmful effect

18   of the activity or transaction on juveniles.”            Id. at 276-77.

19   Hilario-Hilario         has    not   identified   any    error   in    the

20   particularly serious crime determination because she never


                                           4
1    presented any argument or evidence to the agency to rebut the

2    presumption.

3        Hilario-Hilario remained eligible for deferral of removal

4    under the CAT despite her conviction.       8 C.F.R. § 1208.17(a).

5    But, as noted above, her conviction limits our jurisdiction to

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

7    § 1252(a)(2)(C), (D); Ortiz-Franco v. Holder, 782 F.3d 81, 86

8    (2d Cir. 2015).

9        Hilario-Hilario’s sole challenge to the denial of CAT

10   deferral is that the agency overlooked evidence that the

11   Dominican government ignores the actions of drug dealers and

12   smugglers who would target her because they will perceive her

13   to have either been “involved in the drug trade[] or cooperated

14   against it” due to her light sentence.       While it is true that

15   the agency may commit an error of law if “important” facts have

16   been “totally overlooked and others have been seriously

17   mischaracterized,” Mendez v. Holder, 566 F.3d 316, 323 (2d Cir.

18   2009), a review of the record reveals no such errors.         We

19   “presume [the agency] has taken into account all of the evidence

20   before [it], unless the record compellingly suggests

21   otherwise.”    Ahmed v. Lynch, 804 F.3d 237, 240 (2d Cir. 2015)
                                      5
1    (quoting Xiao Ji Chen v. U.S. Dep't of Justice, 471 F.3d 315,

2    336 n.17 (2d Cir. 2006)).   The record does not suggest that the

3    agency overlooked evidence: the IJ considered

4    Hilario-Hilario’s testimony and evidence that there is “general

5    violence and crime” in the Dominican Republic.     In essence,

6    what Hilario-Hilario challenges is the agency’s factual

7    determination that this evidence did not show that she would

8    more likely than not be tortured.    This is a finding of fact

9    beyond our jurisdiction to review.   See Ortiz-Franco, 782 F.3d

10   at 91; Hui Lin Huang v. Holder, 677 F.3d 130, 133-34 (2d Cir.

11   2012).

12       For the foregoing reasons, the petition for review is

13   DENIED.    As we have completed our review, any stay of removal

14   that the Court previously granted in this petition is VACATED,

15   and any pending motion for a stay of removal in this petition

16   is DISMISSED as moot.    Any pending request for oral argument

17   in this petition is DENIED in accordance with Federal Rule of

18   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

19   34.1(b).

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

                                     6
