                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-8-2006

Zhao v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3572




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                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 05-3572


                                      HUI ZHAO,

                                                      Petitioner

                                           v.

                 ATTORNEY GENERAL OF THE UNITED STATES,

                                                      Respondents



                         On Petition for Review of an Order of
                          The Board of Immigration Appeals
                                  (No. A42-731-278)
                       Immigration Judge: Charles M. Honeyman


                      Submitted Under Third Circuit LAR 34.1(a)
                                   March 9, 2006

                    Before: AMBRO and BECKER,* Circuit Judges,
                              STAGG,** District Judge

                            (Opinion filed: August 8, 2006)



      *
       This case was submitted to the panel of Judges Ambro, Becker, and Stagg. Judge
Becker died before the filing of this Opinion. It is filed by a quorum of the panel under
28 U.S.C. § 46(d).
      **
        Honorable Tom Stagg, Senior District Judge for the Western District of
Louisiana, sitting by designation.
                                          OPINION


AMBRO, Circuit Judge

       Hui Zhao, a Chinese citizen, was convicted of an aggravated felony—conspiracy

to purchase drugs. He was charged with removal and appeared before an immigration

judge, who denied him relief. Zhao claims that he is eligible for asylum or cancellation of

removal, that he was not convicted of a “particularly serious crime,” and that he is

entitled to relief under the Convention Against Torture (CAT). But Zhao’s aggravated-

felony conviction precludes his success on the first issue and divests us of jurisdiction

over the third, and the finding of a “particularly serious crime” was not unreasonable. We

therefore deny his petition for review.

                     I. Factual Background and Procedural History

       Zhao is a native and citizen of the People’s Republic of China. He was convicted

in March 2001 for conspiracy to possess with intent to distribute marijuana and cocaine.

The charge against Zhao was that he had brokered a deal with a codefendant to buy 10

pounds of marijuana and 5 ounces of cocaine for $11,000 from a government informant.

He was sentenced to 15 months’ imprisonment and 3 years’ supervised release.

       The Immigration and Naturalization Service1 filed a notice to appear charging

Zhao with being subject to removal as an alien convicted of a controlled-substance law


       1
           Now Bureau of Immigration and Customs Enforcement.

                                              2
and as an alien convicted of an aggravated felony. Zhao appeared before an immigration

judge (IJ). He admitted the factual allegations on the notice to appear, denied

removability, and sought relief under statutory withholding of removal and under the

CAT.2 The IJ denied his applications.

       Zhao timely appealed to the Board of Immigration Appeals (BIA), which affirmed

the IJ’s decision. Zhao petitioned for review of the BIA’s decision in our Court, but we

dismissed the petition for lack of jurisdiction in July 2004. Later that month, Zhao filed a

petition for a writ of habeas corpus in the Middle District of Pennsylvania, which

transferred the petition, as a converted petition for review, to our Court.

                                       II. Discussion

       The BIA had jurisdiction under 8 C.F.R. § 1003.1(b). Pursuant to the REAL ID

Act of 2005, Pub. L. No. 109-13, div. B, § 106(c), 119 Stat. 231, 311, the District Court

transferred Zhao’s habeas petition to our Court in July 2005.

       The Government contests our jurisdiction. Because we split Zhao’s arguments

into three categories, we deal with the specific jurisdictional (and, if applicable, standard

of review) issues separately for each one.

       We have jurisdiction to consider our jurisdiction, cf. Papageorgiou v. Gonzales,

413 F.3d 356, 357 (3d Cir. 2005), and we “review jurisdictional questions de novo,”

Urena-Tavarez v. Ashcroft, 367 F.3d 154, 157 (3d Cir. 2004).


       2
      Officially, the United Nations Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85.

                                              3
                                              A.

       Zhao first disputes the BIA’s conclusion that he is not eligible for asylum or

cancellation of removal. He claims that his crime was not “particularly serious” under the

framework set forth in In re Y-L-, 23 I. & N. Dec. 270 (B.I.A. 2002). But the resolution

of this issue rests on plain statutory language.3

       Under 8 U.S.C. § 1158(b)(2)(A)(ii), an alien “convicted by a final judgment of a

particularly serious crime” is not eligible to apply for asylum if the Attorney General

determines that he “constitutes a danger to the community of the United States.” We

need not look to In re Y-L- to decide whether Zhao was convicted of a particularly serious

crime, as the statute further provides that “an alien who has been convicted of an

aggravated felony shall be considered to have been convicted of a particularly serious

crime.” Id. § 1158(b)(2)(B)(i). In our July 2004 order, we determined that Zhao’s

conviction qualifies as an aggravated felony. He is not eligible to apply for asylum

because he is statutorily deemed to have been convicted of a particularly serious crime.

       Likewise, Zhao is not eligible for cancellation of his removal. Under 8 U.S.C.

§ 1229b(a)(3), the Attorney General cannot cancel removal for an alien who has “been

convicted of any aggravated felony.”

                                              B.



       3
         We exercise de novo review over the BIA’s legal conclusions, “subject to
established principles of deference.” Mendez-Reyes v. Att’y Gen., 428 F.3d 187, 191 (3d
Cir. 2005) (internal quotation marks omitted).

                                               4
       Zhao argues that the IJ erred in deciding that he had been convicted of a

particularly serious crime,4 a decision that led the BIA to decide that he was ineligible for

statutory withholding of removal.5 Under 8 U.S.C. § 1231(b)(3)(B)(ii), the Attorney

General cannot withhold an alien from removal if “the Attorney General decides

that . . . the alien, having been convicted by a final judgment of a particularly serious

crime[,] is a danger to the community of the United States.” An alien convicted of an

aggravated felony and sentenced to an aggregate term of imprisonment of at least five

years is statutorily deemed to have committed a “particularly serious crime.” Id.

§ 1231(b)(3)(B). Because Zhao was sentenced to only 15 months’ imprisonment, he does

not automatically fall within that category. This mandatory five-year qualification does

not, however, “preclude the Attorney General from determining that, notwithstanding the

length of sentence imposed, an alien has been convicted of a particularly serious crime.”

Id.

       The Government argues that we do not have jurisdiction to decide this issue under

either § 1252(a)(2)(B) or § 1252(a)(2)(C). Under Alaka v. Attorney General, — F.3d —,

—, 2006 WL 1994500, at *15 (3d Cir. July 18, 2006), though, we do have jurisdiction to



       4
         The definition of a particularly serious crime is different in the context of
statutory withholding of removal under 8 U.S.C. § 1231 than in the context of asylum
under 8 U.S.C. § 1158.
       5
       Statutory withholding of removal is different than withholding of removal under
the CAT. See Kamalthas v. INS, 251 F.3d 1279, 1283 (9th Cir. 2001). We discuss the
CAT claim below.

                                              5
review the BIA’s “particularly serious crime” determination. For this question, which

involves the application of law to fact, we “review the BIA’s legal decisions de novo, but

will afford Chevron deference to the BIA’s [and the IJ’s] reasonable interpretations of

statutes which it is charged with administering.” Francois v. Gonzales, 448 F.3d 645,

648 (3d Cir. 2006) (internal quotation marks omitted).6

       In re Y-L- holds that “aggravated felonies involving unlawful trafficking in

controlled substances presumptively constitute ‘particularly serious crimes’ within the

meaning of section 241(b)(3)(B)(ii) [8 U.S.C. § 1231(b)(3)(B)(ii)]. Only under the most

extenuating circumstances that are both extraordinary and compelling would departure

from this interpretation be warranted or permissible.” 23 I. & N. Dec. at 274. Instead of

deeming all drug-trafficking offenses to be per se particularly serious, the Attorney

General opted to leave open “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 falling short of that standard.” Id. at 276.

       Such an “unusual circumstance[]” requires at least these several factors:

       (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 the criminal activity, transaction, or
       conspiracy; (4) the absence of any violence . . . ; (5) the absence of any
       organized crime or terrorist organization involvement . . . ; and (6) the
       absence of any adverse or harmful effect . . . on juveniles.


       6
         The BIA here issued an opinion, so we are not faced with the question whether an
IJ’s opinion affirmed by the BIA without opinion is also entitled to Chevron deference.
See Ng v. Att’y Gen., 436 F.3d 392, 395 n.4 (3d Cir. 2006).

                                              6
Id. at 276–77.

       We do not need to analyze factors (4), (5), or (6), as they are not at issue here.

Zhao argues that his crime is not particularly serious under factors (1), (2), and (3). He

thus claims that 10 pounds of marijuana and 5 ounces of cocaine are “a very small

quantity of controlled substance”; that $11,000 is “a very modest amount of money”; and

that buying drugs from a government informer for a co-conspirator is “merely peripheral

involvement.”

       Zhao is correct that the crimes discussed in In re Y-L- were more serious than his.

One involved 84 grams of cocaine and resisting a police officer with violence. Id. at 277.

Another involved 1,330 grams of cocaine. Id. at 278. The third involved “multi-kilogram

quantities” of cocaine for distribution. Id. But the Attorney General also noted that “each

[respondent] was a direct actor or perpetrator—not merely a peripheral figure—in their

respective criminal activities.” Id. at 277.

       Zhao’s crime does not fit within each factor—each of which must be satisfied to

escape the “particularly serious crime” determination. Ten pounds of marijuana and five

ounces7 of cocaine is not “a very small quantity of controlled substance.” Eleven

thousand dollars is not “a very modest amount of money.” And buying drugs from a

government informer for a co-conspirator is not “merely peripheral involvement.” The

IJ’s determination that Zhao was convicted of a particularly serious crime and the BIA’s


       7
        We note that, as a mathematical statement, Zhao’s five ounces of cocaine is
roughly 140 grams.

                                               7
determination that he was ineligible for statutory withholding of removal were both

reasonable interpretations of § 1231(b)(3)(B).

                                                C.

          Zhao also argues that the IJ erroneously made an adverse credibility determination

for deferral of removal under the CAT. The Government claims that we have no

jurisdiction over this issue by virtue of 8 U.S.C. § 1252(a)(2)(C).

          First, an IJ’s final decision on a deferral of removal under the CAT is a “final order

of removal” under § 1252(a)(2)(C). Indeed, 8 C.F.R. § 208.18(e)(1) provides that “there

shall be no judicial appeal or review of any action, decision, or claim raised under the

[CAT], except as part of the review of a final order of removal pursuant to section 242 of

the Act [8 U.S.C. § 1252].” (emphasis added).

          Because 8 U.S.C. § 1252(a)(2)(C) divests us of “jurisdiction to review any final

order of removal against an alien who is removable by reason of having committed a

criminal offense covered in [8 U.S.C. § 1227(a)(2)(A)(iii)—that is, an aggravated

felony],” we must consider whether § 1252(a)(2)(D) revives our jurisdiction over this

issue.8

          Section 1252(a)(2)(D) allows us jurisdiction over “constitutional claims or

questions of law.” Zhao raises no constitutional claims. Our Court has defined



          8
        It is uncontested—and already decided in our July 2004 order—that Zhao was
convicted of an aggravated felony, which includes “illicit trafficking in a controlled
substance,” 8 U.S.C. § 1101(a)(43)(B).

                                                8
“questions of law” to include “pure questions of law and . . . issues of application of law

to fact, where the facts are undisputed and not the subject of challenge.” Kamara v. Att’y

Gen., 420 F.3d 202, 211 (3d Cir. 2005) (citation and internal quotation marks omitted).

But “factual or discretionary determinations continue to fall outside [our] jurisdiction.”

Sukwanputra v. Gonzales, 434 F.3d 627, 634 (3d Cir. 2006).9

       What we have before us is neither a pure question of law nor an application of law

to undisputed fact. The IJ’s credibility determination is a factual issue. See Jishiashvili v.

Att’y Gen., 402 F.3d 386, 392 (3d Cir. 2005) (noting that “credibility determinations are

factual matters”); see also Cao v. Att’y Gen., 407 F.3d 146, 152 (3d Cir. 2005) (“The

credibility determination, like all IJ factual findings, is subject to substantial evidence

review.”). Thus, Zhao’s challenge to the adverse credibility finding is a question of fact,

and § 1252(a)(2)(C) puts this issue outside our jurisdiction.10



       9
         Although Zhao’s habeas petition is treated as a petition for review after the
REAL ID Act, cf. Kamara, 420 F.3d at 210, even our alien habeas jurisdiction was
“limited to constitutional issues and errors of law . . . , but [did] not include review of
administrative fact findings or the exercise of discretion,” Auguste v. Ridge, 395 F.3d 123,
138 (3d Cir. 2005). And our post-REAL ID Act jurisdictional standard “mirrors our
previously enunciated standard of review over an alien’s habeas petition.” Kamara, 420
F.3d at 211.
       10
         See also Hamid v. Gonzales, 417 F.3d 642, 647 (7th Cir. 2005) (“Unfortunately
for Hamid, his argument that the IJ wrongly denied him CAT relief does not depend upon
any constitutional issue or question of law. Rather, it comes down to whether the IJ
correctly considered, interpreted, and weighed the evidence presented . . . . We therefore
find no basis, within the limited scope of our jurisdiction to consider the claims of
aggravated felons, to find that the IJ erred. . . . , so we DISMISS his petition for
review . . . for lack of jurisdiction.”).

                                               9
                                          *****

       Zhao is ineligible for asylum or cancellation of removal because he was convicted

of an aggravated felony. He is ineligible for statutory withholding of removal because he

was convicted of a particularly serious crime. We do not have jurisdiction over his CAT

claims because he raises only the factual issue of the IJ’s adverse credibility finding.11

We therefore deny in part and dismiss in part what we deem to be Zhao’s petition for

review.




       11
       This therefore precludes us from rendering a decision on both of Zhao’s
arguments under the CAT—that he should not be ineligible for withholding under the
CAT, and that he should be granted deferral of removal under the CAT.

                                              10
