                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 12-2417


AMJAD PERVEZ,

                Petitioner,

          v.

ERIC H. HOLDER, JR., Attorney General,

                Respondent.



                              No. 12-2567


AMJAD PERVEZ,

                Petitioner,

          v.

ERIC H. HOLDER, JR., Attorney General,

                Respondent.



                              No. 13-1448


AMJAD PERVEZ,

                Petitioner,

          v.

ERIC H. HOLDER, JR., Attorney General,
                Respondent.



On Petitions for Review of Orders of the Board of Immigration
Appeals.


Submitted:   October 29, 2013          Decided:     November 7, 2013


Before WILKINSON, MOTZ, and KING, Circuit Judges.


Petitions denied by unpublished per curiam opinion.


David C. Drake, CARLINER & REMES, P.C., Washington, D.C., for
Petitioner.   Stuart F. Delery, Assistant Attorney General, Carl
H. McIntyre, Jr., Assistant Director, Christina J. Martin,
Office of Immigration Litigation, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Respondent.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

               Amjad      Pervez,          a    native        and     citizen         of        Pakistan,

petitions         for   review       of     orders       of    the       Board       of    Immigration

Appeals      (“Board”)         dismissing         his      appeal        from    the       immigration

judge’s       order,       denying         his       motion        for    reconsideration               and

denying his motion to reopen.                     We deny the petitions for review.

               Pervez,         who   entered         the      United      States          as    a    lawful

permanent         resident,          was       found       removable           for        having       been

convicted         of    an      aggravated           felony.             See     Immigration            and

Nationality         Act      (“INA”)       § 237(a)(2)(A)(iii).                      The       aggravated

felony       of    which       he    was       convicted           was    attempted            “indecent

liberties with a child,” in violation of Va. Code Ann. § 18.2-

370,    an    offense         relating         the    child        sexual       abuse.           See    INA

§ 101(a)(43)(A).

               Under       8     U.S.C.          § 1252(a)(2)(C)               (2012),          we     lack

jurisdiction, except as provided in 8 U.S.C. § 1252(a)(2)(D), to

review    the      final       order      of     removal       of    an    alien          convicted      of

certain       enumerated         crimes,          including          an     aggravated              felony.

Under     § 1252(a)(2)(C),             this          court     retains          jurisdiction            “to

review       factual      determinations             that      trigger         the    jurisdiction-

stripping provision, such as whether [Pervez] [i]s an alien and

whether       []he      has     been       convicted          of    an    aggravated            felony.”

Ramtulla v. Ashcroft, 301 F.3d 202, 203 (4th Cir. 2002).                                             If we



                                                     3
are   able     to     confirm    these       two   factual     determinations,        then,

under 8 U.S.C. § 1252(a)(2)(C), (D), the court can only consider

“constitutional         claims    or        questions    of    law.”         See    Mbea    v.

Gonzales, 482 F.3d 276, 278 n.1 (4th Cir. 2007).

               Pervez concedes that he is an alien convicted of an

aggravated felony.            Thus, we have jurisdiction only to consider

constitutional claims and questions of law.                          This limitation to

our jurisdiction covers the Board’s order of removal dismissing

the appeal from the immigration judge’s order as well as the

Board’s      orders     denying       reconsideration          and    reopening.           See

Larngar v. Holder, 562 F.3d 71, 75 (1st Cir. 2009); Martinez-

Maldonado      v.     Gonzales,       437    F.3d   679,      683     (7th   Cir.    2006);

Sarmadi v. INS, 121 F.3d 1319, 1321-22 (9th Cir. 1997) (“where

Congress explicitly withdraws our jurisdiction to review a final

order     of    deportation,          our    authority        to    review    motions      to

reconsider       or     to    reopen     deportation       proceedings        is    thereby

likewise withdrawn”).

               Pervez        sought     relief       from          removal    by     filing

applications for asylum, withholding of removal and deferral of

removal under the Convention Against Torture (“CAT”), claiming

that as an Ahmadiyya Muslim, he will be persecuted in Pakistan.

Under 8 U.S.C. § 1158(b)(2)(A)(ii) (2012), an alien convicted of

a “particularly serious crime” is not eligible for asylum.                                  An



                                               4
aggravated felony conviction is a per se particularly serious

crime for asylum purposes.                 See 8 U.S.C. § 1158(b)(2)(B)(i).

Thus, because Pervez was convicted of an aggravated felony, the

immigration      judge       correctly     found        he    was    not        eligible         for

asylum.

             Under     8     U.S.C.    § 1231(b)(3)(B)(ii),               (iv)    (2012),          an

alien   convicted       of    a   particularly          serious     crime        is       also   not

eligible       for     withholding       from       removal.              For     withholding

purposes, a particularly serious crime is an aggravated felony

for    which    the     aggregate       sentence        is    at    least        five       years.

However, the Attorney General is not precluded from determining

that notwithstanding the sentence, an alien has been convicted

of a particularly serious crime for withholding purposes.

             In this instance, Pervez’s sentence was one day short

of    five   years     and     thus,    his       conviction        was    not        a    per     se

particularly serious crime for withholding of removal purposes.

Nevertheless, the immigration judge reviewed the indictment, the

conviction       and       sentencing      records           and    Pervez’           testimony

regarding      his    criminal     conduct        and    determined        that       it     was    a

particularly serious crime.               See Matter of N-A-M-, 24 I. & N.

Dec. 336, 342 (B.I.A. 2007).                  We conclude that the immigration

judge and the Board engaged in a case-specific analysis and did

not err as a matter of law to reach the finding that Pervez’s



                                              5
conviction was for a particularly serious crime.                                While no child

was actually harmed or even involved as a potential victim, a

particularly        serious    crime      does     not       have     to        be   violent    or

potentially violent.           See Matter of R-A-M, 25 I. & N. Dec. 657,

662    (B.I.A.      2012).      In     this       instance,          the     Board      and    the

immigration judge considered the nature of the conviction, the

underlying facts, and the type of sentence imposed.                                        Gao v.

Holder, 595 F.3d 549, 557 (4th Cir. 2010).                                 Thus, we find no

legal    error      in   the    conclusion         that           Pervez    is       statutorily

ineligible for withholding of removal.

              In order to be granted deferral of removal under the

CAT, Pervez must show that it is more likely than not that he

will    be   tortured     if   he    is    removed           to    Pakistan.           8   C.F.R.

§ 1208.16(c)(2)(2013).           To state a prima facie case for relief

under the CAT, Pervez must show that it is more likely than not

that he will be subject to “severe pain or suffering, whether

physical or mental . . . 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.        §    1208.18(a)(1)

(2013); see Saintha v. Mukasey, 516 F.3d 243, 246 & n.2 (4th

Cir. 2008).      He does not need to prove that the torture would be

inflicted on account of a protected ground.                           Dankam v. Gonzales,

495 F.3d 113, 116 (4th Cir. 2007).                   While we generally review a



                                              6
denial of relief under the CAT for substantial evidence, because

Pervez is removable for having been convicted of an aggravated

felony, we can only review constitutional claims and questions

of law.    See Mbea, 482 F.3d at 278.

               Pervez contends that the Board erred as a matter of

law denying his motion to reconsider in which he argued that the

Board erred by not considering his claimed that he faced torture

in Pakistan because he will be a criminal deportee.                          We conclude

there   was     no    error     of   law   on   the    Board’s      part     because     the

failure    to     consider       the     consequences         of    being    a    criminal

deportee as it dismissed Pervez’s appeal was because Pervez did

not raise the issue on appeal.                  See 8 C.F.R. § 1003.3(b) (2013)

(alien must identify the reasons for the appeal).                             We further

conclude that the Board did not otherwise err as a matter of law

when it denied Pervez’s motion to reconsider.

               Insofar     as   Pervez     argues      here   that    the    immigration

judge   erred        by   not   considering      the    consequences         of   Pervez’s

status as a criminal deportee if he is removed to Pakistan, we

note    that    Pervez’s        failure    to    exhaust      the    issue       on   appeal

deprives us of jurisdiction to review the issue.                            See 8 U.S.C.

§ 1252(d)(1) (2012); Massis v. Mukasey, 549 F.3d 631, 638–40

(4th Cir. 2008) (alien’s failure to dispute an issue on appeal




                                            7
to the Board constitutes a failure to exhaust administrative

remedies barring judicial review).

            We note that when the Board addressed the issue of the

potential consequences of Pervez’s criminal deportee status when

it denied Pervez’s motion to reopen, it was only doing so in

order to determine if Pervez was prejudiced by counsel’s failure

to raise this issue during his merits hearing.                                Pervez’s claim

that the Board was implicitly acknowledging that it should have

reviewed the issue in the order dismissing his appeal is not

supported    by    the   record.         We       have    reviewed           the   record        and

conclude    that   the   Board     did    not       err    as      a    matter       of    law    by

finding that Pervez was not prejudiced by counsel’s failure to

argue that it was more likely than not that he will be detained

and   tortured     because   he    is    a        criminal      deportee.            The    Board

considered the affidavits filed in support of Pervez’s motion,

all of which came from persons living in the United States, and

correctly    concluded    that     the       affiants        did       not    show    how    they

gained   personal    knowledge      that          Pervez     will       be    detained      as     a

criminal deportee upon his arrival in Pakistan.                                We note that

the affiants’ claims that Pervez will inevitably be detained and

arrested upon his arrival in Pakistan is not supported by the

objective evidence in the record.                        We further note that the

Board did not err as a matter of law when it considered Shahid



                                              8
Malik’s statement.       Contrary to Pervez’s assertion, the Board

did not simply ignore the statement.              It did presume that the

statement was submitted by an officer within an organization

serving the Ahmadi community in the United States.

           Pervez also contends that he was denied due process.

In order to establish a due process violation during removal

proceedings,    Pervez    must     show   “(1)    that    a    defect   in   the

proceeding rendered it fundamentally unfair and (2) that the

defect prejudiced the outcome of the case.”                   Anim v. Mukasey,

535 F.3d 243, 256 (4th Cir. 2008).               Prejudice is shown if the

defect “was likely to impact the results of the proceedings.”

Id. (internal quotation marks omitted).            We conclude that Pervez

failed to show that the denial of his motion to reopen was a due

process violation.

           Insofar as Pervez argues that the immigration judge

denied him due process by failing to allow him to develop his

claim under the CAT, we note that Pervez did not raise this

issue on appeal to the Board.             See Tall v. Mukasey, 517 F.3d

1115, 1120 (9th Cir. 2008) (opining that petitioner’s particular

due   process   claim   required    administrative       exhaustion     “because

the [Board] could have provided a remedy if his complaints were

found to be valid”); Sharashidze v. Gonzales, 480 F.3d 566, 570

(7th Cir. 2007) (“Although petitioners generally do not have to



                                      9
exhaust    due   process      claims   administratively,        they   must   raise

such claims below when alleging procedural errors correctable by

the [Board].”).         We are thus without jurisdiction to review the

claim.    See 8 U.S.C. § 1252(d)(1); Massis, 549 F.3d at 638–40.

            Accordingly, we deny the petitions for review.                       We

dispense    with       oral   argument    because       the    facts   and    legal

contentions      are   adequately      presented   in    the   materials      before

this court and argument would not aid the decisional process.



                                                                PETITIONS DENIED




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