                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                              No. 14-1363 and No. 14-1819
                                    _____________

                                CARTER BABOOLALL,
                                           Petitioner

                                             v.

              ATTORNEY GENERAL UNITED STATES OF AMERICA,
                                                   Respondent
                            _____________

                          On Petition for Review of an Order
                         of the Board of Immigration Appeals
                             (Agency No. A035-748-345)
                    Immigration Judge: Honorable Andrew R. Arthur
                                   ______________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                  February 10, 2015
                                  ______________

           Before: CHAGARES, VANASKIE, and SHWARTZ, Circuit Judges.

                             (Opinion Filed: April 14, 2015)
                                    ______________

                                        OPINION*
                                     ______________

VANASKIE, Circuit Judge.

       This petition for review of a removal order presents for our consideration the


       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
following three principal issues: (1) Is petitioner Carter Baboolall’s conviction under

N.Y. Penal Law §§ 110.00 and 220.39(1) for the attempted sale of a controlled substance

an “aggravated felony” under § 237(a)(2)(A)(iii) of the Immigration and Nationality Act

(“INA”), 8 U.S.C. § 1227(a)(2)(A)(iii), so that Baboolall is not eligible for asylum

pursuant to 8 U.S.C. § 1158(b)(2)(B)(i)? (2) Does his state-court controlled-substance

conviction qualify as a “particularly serious crime,” making him ineligible for

withholding of removal pursuant to 8 U.S.C. § 1231(b)(3)(B)(ii)? (3) Is Baboolall

nonetheless entitled to deferral of removal to his native Guyana by virtue of the country’s

alleged hostility to homosexuals under the Convention Against Torture (“CAT”), see

Convention against Torture and Other Cruel, Inhumane, or Degrading Treatment of

Punishment, art. 3, opened for signature Dec. 10, 1984, S. Treaty Doc. No. 100-20

(1988), 1465 U.N.T.S. 85 (entered into force June 26, 1987)? For the reasons that follow,

we find that Baboolall’s state-court conviction is an “aggravated felony” that qualified as

a “particularly serious crime,” and that he did not establish that deferral of removal is

warranted. Accordingly, we will deny the petition for review.

                                              I.

       Baboolall entered the United States from Guyana as an 18-month-old in 1978 and

was granted lawful permanent resident status. In 1998, Baboolall was convicted in New

York of attempted sale of a controlled substance in the third degree, in violation of N.Y.

Penal Law, §§ 110.00 (attempt) and 220.39(1) (sale of a controlled substance). In 2013,

the Department of Homeland Security served Baboolall with a notice to appear, charging

                                              2
that he was removable as an alien convicted of an aggravated felony and a controlled

substance violation pursuant to INA §§ 237(a)(2)(A)(iii) and (B)(i), respectively, 8

U.S.C. §§ 1227(a)(2)(A)(iii) and (B)(i).

       On July 3, 2013, Baboolall appeared before an Immigration Judge (“IJ”) and,

through counsel, denied the allegation concerning his 1998 conviction and contested his

removability. Baboolall also applied for asylum, withholding of removal under the INA,

and relief under Article 3 of CAT. On September 25, 2013, the IJ took evidence and

heard testimony to determine whether Baboolall was removable or qualified for

discretionary relief.

       Baboolall claimed to be bisexual and homosexual, despite being engaged to a

woman and fathering three children with another woman. He testified he was concerned

that he would be subject to persecution, ridicule, and abuse if he were forced to return to

Guyana because Guyanese laws criminalize homosexuality. Baboolall submitted various

reports and Guyanese statutes in support of his claim. The IJ admitted several documents

from the Government into evidence, including a record of Baboolall’s 1998 conviction

and the corresponding criminal information charging him with attempted sale of heroin.

       At the close of the hearing, the IJ addressed the threshold issue of whether

Baboolall’s state-court controlled substance conviction constituted an “aggravated

felony” under the INA, which rendered him ineligible for asylum. See 8 U.S.C. §

1158(b)(2)(B)(i). The IJ properly noted that there were two potential routes to make this

determination: the “illicit trafficking route” and the “hypothetical federal felony route.”

                                              3
Gerbier v. Holmes, 280 F.3d 297, 313–16 (3d Cir. 2002). To qualify under the “illicit

trafficking route,” Baboolall’s conviction must have involved “the unlawful trading or

dealing of a controlled substance.” Id. at 305. The IJ concluded that the “illicit

trafficking route” inquiry was inconclusive because there was “no information in the

conviction record that there was in fact an actual monetary transaction that occurred at

the time of the attempted criminal sale of a controlled substance.” (App. at 23.)

       Accordingly, the IJ next applied the “hypothetical federal felony” approach to

determine whether the 1998 conviction was an “aggravated felony.” Under this analysis,

a state drug conviction qualifies as an “aggravated felony” if it would be punishable as a

felony under the federal Controlled Substances Act (“CSA”). Gerbier, 280 F.3d at 315.

The IJ recognized that in making this determination, he was presumptively required to

apply the “formal categorical approach,” relying only on the statute of conviction and the

relevant statutory definitions to decide whether the conviction qualified as an “aggravated

felony.” See Singh v. Ashcroft, 383 F.3d 144, 147–48 (3d Cir. 2004). The relevant state

statute of conviction here, N.Y. Penal Law § 220.39(1), provides that “[a] person is guilty

of criminal sale of a controlled substance in the third degree when he knowingly and

unlawfully sells . . . a narcotic drug.” The term “narcotic drug” is defined under New

York law by reference to schedules of controlled substances set forth in N.Y. Public

Health Law § 3306. See N.Y. Penal Law § 220.00(7). The IJ, observing that the

schedule of controlled substances under federal law did not match the New York

schedule of controlled substances, looked “to the conviction record for the limited

                                             4
purpose of determining what drug was involved [in Baboolall’s prosecution].” (App. at

23.) The document charging Baboolall with a crime, the criminal information, reads, in

relevant part:

                 [T]his information, accuses the defendant of the crime of
                 [attempted] CRIMINAL SALE OF A CONTORLLED
                 SUBSTANCE IN THE THIRD (3) DEGREE, in violation of
                 Penal Law Section 110/220.39, committed as follows:
                 The defendant, in the County of New York, City of New
                 York, on or about 9/27/97, Attempted to knowingly and
                 unlawfully sell to [another individual], a narcotic drug, to wit
                 Heroin.

(App. at 230.) Based upon the charging instrument, the IJ concluded that the “narcotic

drug” involved in Baboolall’s conviction was heroin.

       The IJ then determined that Baboolall could have been prosecuted federally for

this conduct pursuant to 21 U.S.C. §§ 841(a) and 846,1 the analogous federal statues to

N.Y. Penal Law §§ 110.00 and 220.39(1). Because a violation of § 841(a) for the

attempted sale of heroin was punishable by a term of imprisonment “of not more than 20

years” under 21 U.S.C. § 841(b)(1)(C), the IJ concluded that Baboolall’s state-court

conviction qualified as an aggravated felony within the meaning of INA § 101(a)(43)(B),

8 U.S.C. § 1101(a)(43)(B).

       An “aggravated felony” automatically constitutes a “particularly serious crime”

for purposes of disqualifying an alien for asylum. See INA § 208(b)(2)(A)(ii) and (B)(i),



       1
        21 U.S.C. § 846 states, in relevant part, that “[a]ny person who attempts or
conspires to commit any offense defined in this subchapter shall be subject to the same
penalties as those prescribed for the offense[.]”
                                                5
8 U.S.C. §§ 1158(b)(2)(A)(ii) and (B)(i). Accordingly, the IJ denied Baboolall’s

application for asylum.

       The IJ then turned to the request for withholding of removal under INA §

241(b)(3), 8 U.S.C. § 1231(b)(3)(A), which affords relief to an alien who would be

threatened in the country of removal “because of the alien’s race, religion, nationality,

membership in a particular social group, or political opinion.” Withholding of removal,

however, is not available to an alien previously convicted of a “particularly serious

crime.” 8 U.S.C. 1231(b)(3)(B)(ii). An alien sentenced to a prison term of at least five

years is conclusively considered to have committed a “particularly serious crime.” Id. §

1231(b)(3)(B). With respect to an alien whose sentence is less than five years, such as

Baboolall, the INA vests in the Attorney General the discretion to decide whether the

crime is “particularly serious.” Id. The Attorney General, in Matter of Y-L-, 23 I. & N.

Dec. 270 (Op. Att’y Gen. 2002), exercised that discretion in concluding that “aggravated

felonies involving unlawful trafficking in controlled substances presumptively constitute

‘particularly serious crimes’ . . . , and only under the most extenuating circumstances that

are both extraordinary and compelling would departure from this interpretation be

warranted or permissible.” Id. The Attorney General then identified what an alien would

need to show, at a minimum, to rebut the presumption that the alien’s drug trafficking

crime was a “particularly serious” one:

              (1) a very small quantity of controlled substance; (2) a very
              modest amount of money paid for the drugs in the offending
              transaction; (3) merely peripheral involvement by the alien in

                                             6
              the criminal activity, transaction, or conspiracy; (4) the
              absence of any violence or threat of violence, implicit or
              otherwise, associated with the offense; (5) the absence of any
              organized crime or terrorist organization involvement, direct
              or indirect, in relation to the offending activity; and (6) the
              absence of any adverse or harmful effect of the activity or
              transaction on juveniles.

Id. at 276–77. The Attorney General made clear that “[o]nly if all of these criteria were

demonstrated by an alien would it be appropriate to consider whether other, more unusual

circumstances (e.g., the prospective distribution was solely for social purposes, rather

than for profit) might justify departure from the default interpretation that drug trafficking

felonies are ‘particularly serious crimes.’” Id. at 277 (emphasis in original).

       In Baboolall’s case, the IJ found that Baboolall had “failed to show that he was a

merely peripheral participant in the criminal activity.” (App. at 37.) Thus, his controlled

substance conviction was for a “particularly serious crime,” precluding withholding of

removal.

       Finally, the IJ addressed Baboolall’s request for CAT protection. Concluding that

Baboolall’s claim that he would be tortured on account of his sexual preference was

“speculative at best,” (App. at 46), the IJ denied the request for deferral of removal under

CAT.

       Baboolall timely appealed the IJ’s decision to the BIA. The BIA affirmed for

substantially the same reasons articulated by the IJ. Baboolall now petitions this Court

for review of the BIA’s final order.

                                             II.

                                              7
       We have jurisdiction over this matter pursuant to 8 U.S.C. § 1252(a)(1). “Because

the basis for [Baboolall’s] removal is his conviction for an aggravated felony, our

jurisdiction is limited . . . to constitutional claims or questions of law raised by his

appeal.” Roye v. Att’y Gen., 693 F.3d 333, 339 (3d Cir. 2012) (internal quotation marks

and citations omitted). “We review the BIA’s legal determinations de novo. . . .” Kaplun

v. Att’y Gen., 602 F.3d 260, 265 (3d Cir. 2010). Although our review is limited to the

BIA’s decision on the merits, we may consider the IJ’s decision and reasoning “insofar as

the BIA deferred to it.” Roye, 693 F.3d at 339.

                        A. The Aggravated Felony Determination

       The Government first argues that Baboolall waived his challenge to the IJ’s

aggravated felony determination because he failed to explicitly raise it before the BIA. In

his appeal to the BIA, Baboolall stated that the IJ “erred in determining that [his] 1998

conviction was a removable conviction in that the statutory listing for the offense

includes conduct which is both an aggravated felony and not an aggravated felony.”

(App. at 19.) Although not an explicit challenge to the aggravated felony determination,

this assertion was sufficient to avoid waiver of the issue. As we have explained, “so long

as an immigration petitioner makes some effort, however insufficient, to place the Board

on notice of a straightforward issue being raised on appeal, a petitioner is deemed to have

exhausted her administrative remedies.” Yan Lan Wu v. Ashcroft, 393 F.3d 418, 422 (3d

Cir. 2005). Here, the BIA was placed on notice that the aggravated felony determination

was at issue.

                                               8
       We now turn to the merits of Baboolall’s claim. As both parties note, Baboolall’s

removability hinges on whether his 1998 New York conviction is an “aggravated felony”

under the INA. An “aggravated felony” is defined as “illicit trafficking in a controlled

substance (as defined in section 802 of Title 21), including a drug trafficking crime (as

defined in section 924(c) of Title 18).” 8 U.S.C. § 1101(a)(43)(B). In turn, 18 U.S.C. §

924(c)(2) defines “drug trafficking crime” to mean “any felony punishable under the

Controlled Substances Act.” Thus, Baboolall’s 1998 conviction constitutes an

aggravated felony if the state-court offense of conviction is equivalent to a felony

conviction under the CSA. Evanson v. Att’y Gen., 550 F.3d 284, 289 (3d Cir. 2008).

       Baboolall contends that the IJ and the BIA erred in applying the modified

categorical approach by going beyond the record of conviction. Asserting that “the

specific substance underlying a conviction under N.Y. Penal Law § 220.39(1) is not an

element of the crime,” (Appellant’s Br. at 17), and that the federal and New York

schedule of controlled substances were found by the IJ to not be identical, Baboolall

argues that in the absence of knowing what substance was involved in his conviction,

“the IJ would have had to conclude that that a conviction under N.Y. Pen. Law

§220.39(1) is categorically not a conviction for an ‘aggravated felony’ as defined in the

INA.” (Id. at 18.) In support of this argument, Baboolall relies upon Moncrieffe v.

Holder, 133 S. Ct. 1678 (2013). In Moncrieffe, the Court held that if the state statute of

conviction covers conduct that would not qualify as a drug trafficking felony under

federal law, the alien’s conviction cannot qualify as an aggravated felony. Id. at 1686–

                                             9
87. Specifically, the Court ruled that “[i]f a noncitizen's conviction for a marijuana

distribution offense fails to establish that the offense involved either remuneration or

more than a small amount of marijuana, the conviction is not for an aggravated felony

under the INA.” Id. at 1693–94. Moncrieffe affords Baboolall no relief because the

definition of “narcotic drug” in N. Y. Penal Law § 220.00(7) specifically excludes

marijuana, and Baboolall has not shown that N.Y. Penal Law § 220.39(1) criminalizes

conduct that would not be a felony under federal law.

       Baboolall further argues that the IJ and BIA were limited to considering only the

statute of conviction under our en banc opinion in Rojas v. Att’y Gen., 728 F.3d 203 (3d

Cir. 2013) (en banc). In Rojas, the petitioner was convicted under a Pennsylvania statute

that prohibited “[t]he use of, or possession with intent to use, drug paraphernalia for the

purpose of . . . introducing into the human body a controlled substance in violation of this

act.” 35 Pa. Cons. Stat. Ann. § 780-113(a)(32). The petitioner’s guilty plea colloquy did

not identify the precise controlled substance involved, Rojas, 728 F.3d at 206, and the

Pennsylvania statute was similarly silent, see 35 Pa. Cons. Stat. Ann. § 780-113(a)(32).

We held that the categorical approach was inapplicable because there was no analogous

federal statute “against which Pennsylvania's paraphernalia statute can be compared.”

Rojas, 728 F.3d at 215. As the modified categorical approach is “merely a ‘tool for

implementing the categorical approach,’” we concluded that it too did not apply. Id. at

216 (quoting Descamps v. United States, 133 S. Ct. 2276, 2284 (2013)).



                                             10
       Contrary to Baboolall’s assertions, Rojas did not discard the modified categorical

approach in drug possession and distribution cases. Rather, we held that neither the

categorical nor the modified categorical approach was in play because there was no

comparable federal statute and the record was silent as to the precise drug involved.

Rojas, 728 F.3d at 215–16. In this case, N.Y. Penal Law § 220.39 is analogous to 21

U.S.C. § 841(a)(1). See Pascual v. Holder, 707 F.3d 403, 405 (2d Cir. 2013) adhered to

on reh'g, 723 F.3d 156 (2d Cir. 2013) (holding that a conviction under § 220.39 for

attempted sale of cocaine qualifies as an aggravated felony). As the IJ recognized,

because there are analogous state and federal statutes, the formal categorical approach

presumptively applies. Evanson, 550 F.3d at 290. However, where a statute lists

alternative elements that implicate the same criminal behavior, an IJ may use the

modified categorical approach and review a limited set of documents, including “the

criminal information,” to determine what underlying conduct supported the finding of

guilt. Id. at 291–93. Similar to a statute that includes alternative elements, the New York

drug schedules delineate the various controlled substances that satisfy the “narcotic drug”

requirement for purposes of N.Y. Penal Law § 220.39(1). The IJ noted that the New

York schedules differ from their federal counterparts, warranting a limited review of the

record of conviction to determine whether Baboolall’s criminal conduct would be

prosecutable as a felony under the CSA. Compare N.Y. Public Health Law § 3306, with

21 U.S.C. § 812. It may have been unnecessary for the IJ to examine the criminal

information in this case because there has been no showing that the New York schedule

                                            11
of controlled substances includes substances that are not on the federal schedule. That is,

a conviction under N.Y. Penal Law § 220.39(1) may necessarily involve a substance

classified as a controlled substance under federal law. See Pascual 707 F.3d at 405

(holding that a conviction under § 220.39 qualifies as an aggravated felony under the

categorical approach). In any event, we conclude that the IJ properly employed the

modified categorical approach in consulting the criminal information to determine the

precise drug involved in Baboolall’s 1998 conviction. See Garcia v. Att’y. Gen., 462

F.3d 287, 292 (3d Cir. 2006) (holding that “we may appropriately examine [the criminal]

complaint if departure from the formal categorical approach is appropriate”).

       Baboolall argues that the record of conviction is ambiguous as to the actual drug

he attempted to sell, noting that the “Certificate of Disposition Indictment” does not

identify “the specific drug involved in the conviction. . . .” (Appellant’s Br. at 15.) The

failure of this particular document to name the drug involved in Baboolall’s crime did not

preclude the IJ and BIA from looking to the criminal information as a reliable source for

determining the precise controlled substance involved in Baboolall’s criminal conduct.

See Garcia, 462 F.3d at 293. Accordingly, we conclude that the Baboolall’s conviction

was appropriately classified as an “aggravated felony.”

                  B. The “Particularly Serious Crime” Determination

       Baboolall additionally contends “that his 199[8] conviction is not for a

‘particularly serious crime’” under Y-L-, 23 I. & N. Dec. 270, and therefore the IJ erred in

denying his petition for withholding of removal. (Appellant’s Br. at 15.) As noted

                                             12
above, the IJ applied the holding of Y-L- that all six elements of the exceptional

circumstances test must be met to justify consideration of discretionary withholding of

removal when an alien has been convicted of a drug trafficking offense. Id. at 276–77.

Baboolall has the burden of proving, by a preponderance of the evidence, that he is

entitled to such relief. See 8 C.F.R. § 1208.16(d)(2) (“If the evidence indicates the

applicability of one or more of the grounds for denial of withholding enumerated in the

Act, the applicant shall have the burden of proving by a preponderance of the evidence

that such grounds do not apply.”). Baboolall was convicted of attempting to sell heroin,

making him an active and willful participant in a serious drug transaction. We conclude

that Baboolall failed to meet his burden of showing that his involvement was “merely

peripheral” and, thus, the IJ properly denied his petition for withholding.

                              C. Denial of Relief under CAT

       Baboolall next asserts that the IJ erred in denying him relief under CAT.

Baboolall’s challenge on this point is purely factual, as he criticizes the IJ’s evaluation of

the evidence. (Appellant’s Br. at 22–26.) As the Government points out and we

previously noted, our jurisdiction is limited to constitutional claims and questions of law.

See 8 U.S.C. §§ 1252(a)(2)(C) and (D). Indeed, in his reply brief, Baboolall states that he

is essentially challenging the IJ’s “finding regarding what is likely to happen if

Petitioner’s [sic] is removed.” (Appellant’s Reply Br. at 11.) A conclusion as to what

will happen to him upon his return to Guyana is a finding of fact and, thus, outside our



                                              13
jurisdiction. See Kaplun, 602 F.3d at 271 (“what is likely to happen to the petitioner if

removed” is a finding of fact).

       We nonetheless retain jurisdiction to resolve whether the undisputed factual record

supports the BIA’s legal conclusions concerning CAT. Toussaint v. Att’y Gen., 455 F.3d

409, 412 n.3 (3d Cir. 2006).2 Baboolall carries the burden of establishing “‘that it is more

likely than not that he . . . would be tortured if removed to the proposed country of

removal.’” Kaplun, 602 F.3d at 268 (quoting 8 C.F.R. § 208.16(c)(2)). “Torture” is the

deliberate infliction of “severe pain or suffering . . . by or at the instigation of or with the

consent or acquiescence of a public official or other person acting in an official capacity.”

8 C.F.R. § 208.18(a)(1). As the IJ and the BIA noted, the evidence established that

attitudes toward homosexuals in Guyana are mixed, laws against homosexual activity go

largely unenforced, and the occasional police harassment of homosexuals is not

condoned, propagated, or supported by the Guyanese government. Accordingly, the BIA

had ample grounds for finding that Baboolall failed to demonstrate it was more likely

than not he would be tortured.

                                              III.

        For the reasons discussed above, we will deny the petition for review.




       2
         As reflected herein, we have jurisdiction over the questions of law that Baboolall
raises, and thus we deny the motion to dismiss for lack of jurisdiction.
                                               14
