    14-4382 (L)
    Vaskovska v. Lynch
                                                                                       BIA
                                                                                Connelly, IJ
                                                                               A099 097 347
                          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.

         At a stated term of the United States Court of Appeals for
    the Second Circuit, held at the Thurgood Marshall United States
    Courthouse, 40 Foley Square, in the City of New York, on the
    31st day of August, two thousand sixteen.

    PRESENT:
             ROSEMARY S. POOLER,
             REENA RAGGI,
             GERARD E. LYNCH,
                  Circuit Judges.
    _____________________________________

    KATERYNA SERGEEVNA VASKOVSKA,
             Petitioner,

                     v.                                              14-4382 (L),
                                                                     15-145 (Con)

    LORETTA E. LYNCH, UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________


    FOR PETITIONER:                      Benjamin Nelson, Student Attorney,
                                         Buffalo, New York (Anjana Malhotra,
                                         SUNY Buffalo Law School, on the
                                         brief)
FOR RESPONDENT:            C. Frederick Sheffield, Trial
                           Attorney, Office of Immigration
                           Litigation, Civil Division,
                           Department of Justice, Washington,
                           DC (Benjamin C. Mizer, Principal
                           Deputy Assistant Attorney General,
                           and Erica B. Miles, Senior
                           Litigation Counsel, on the brief)

FOR AMICI CURIAE:          Philip L. Torrey, Sarah B. Cohen, and
                           Emma I. Scott (Law Students),
                           Harvard Immigration and Refugee
                           Clinic, Cambridge, Massachusetts,
                           on behalf of amici curiae Harvard
                           Immigration and Refugee Clinical
                           Program, Immigrant Defense Project,
                           and National Immigration Project of
                           the National Lawyers Guild.

    UPON DUE CONSIDERATION of these petitions for review of

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

ORDERED, ADJUDGED, AND DECREED that the petitions for review

are DENIED.

    In these consolidated petitions, Kateryna Sergeevna

Vaskovska, a native of the former Soviet Union and a citizen

of Ukraine, seeks review of an October 31, 2014, decision of

the BIA affirming an August 8, 2013, decision of an immigration

judge (“IJ”) denying asylum, withholding of removal, and relief

under the Convention Against Torture (“CAT”); she also seeks

review of a January 15, 2015, decision of the BIA denying her

                              2
motion for reconsideration. In re Vaskovska, No. A099 097 347

(B.I.A. Oct. 31, 2014), aff’g No. A099 097 347 (Immig. Ct.

Batavia Aug. 8, 2013); In re Vaskovska, No. A099 097 347 (B.I.A.

Jan. 15, 2015).    We assume the parties’ familiarity with the

underlying facts and procedural history in this case.

    Under the circumstances of this case, we have considered

both the IJ’s and the BIA’s opinions “for the sake of

completeness[.]”    Wangchuck v. Dep’t of Homeland Sec., 448 F.3d

524, 528 (2d Cir. 2006).    Since Vaskovska’s brief does not

specifically address the standards applicable to denials of

remand and reconsideration, we limit our review to the issues

raised in her petition.

    Pursuant to 8 U.S.C. § 1252(a)(2)(C) and (D), we lack

jurisdiction to review the final order of removal of a

noncitizen like Vaskovska who is removable for having committed

a controlled substance offense unless the petition raises

constitutional claims or questions of law.     We review those

issues de novo.    Pierre v. Holder, 588 F.3d 767, 772 (2d Cir.

2009).




                                3
Particularly Serious Crime Determination

    Asylum and withholding of removal under the Immigration and

Nationality Act (“INA”) and the CAT are unavailable to a

noncitizen who has been convicted of a particularly serious

crime.   8 U.S.C. §§ 1158(b)(2)(A)(ii), 1231(b)(3)(B)(ii).

For purposes of asylum, an aggravated felony is per se

particularly serious, 8 U.S.C. § 1158(b)(2)(B)(i), and for

purposes of withholding, “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 . . .

particularly serious[,]” 8 U.S.C. § 1231(b)(3)(B).      Although

Vaskovska’s conviction for drug possession was a felony, as the

agency acknowledged, it was not an aggravated felony because

it was not a drug trafficking crime.      It was thus not per se

a particularly serious crime.       In such circumstances, the

agency may make an individualized inquiry into whether a

conviction is particularly serious under the facts and

circumstances of each case.     Nethagani v. Mukasey, 532 F.3d

150, 155 (2d Cir. 2008).

    When a conviction is not per se particularly serious, the

agency first considers whether “the elements of the offense
                                4
. . . potentially bring the crime into a category of

particularly serious crimes.”   Matter of N-A-M-, 24 I. & N. Dec.

336, 342 (B.I.A. 2007).    If the crime satisfies this initial

inquiry, the agency may then consider “all reliable

information” in assessing “(1) ‘the nature of the conviction,’

(2) ‘the circumstances and underlying facts of the conviction,’

(3) ‘the type of sentence imposed’ and (4) ‘whether the type

and circumstances of the crime indicate that the alien will be

a danger to the community[.]’” Nethagani, 532 F.3d at 155,

quoting In re Frentescu, 18 I. &. N. Dec. 244, 247 (B.I.A. 1982).

     Vaskovska argues that the BIA erred by failing to make a

threshold determination that the elements of her possession

offense potentially bring it within a category of particularly

serious crimes.   This argument is unexhausted.    Before the

BIA, Vaskovska argued only that the circumstances and

underlying facts of her conviction did not merit a finding that

it was a particularly serious crime.     She urged the BIA to

exercise its discretion under a six-factor test articulated in

Matter of Y-L-, 23 I. & N. Dec. 270, 276-77 (B.I.A. 2002).

Vaskovska thus disputed the IJ’s weighing of the facts and

circumstances of her conviction, and she did not argue that the
                                5
IJ failed to make a threshold determination that the elements

of her possession offense did not potentially bring it within

the ambit of a particularly serious crime.    She also did not

raise this threshold issue in briefing her motion for

reconsideration before the BIA.   Vaskovska’s threshold

argument is not a “subsidiary legal argument[]” to those raised

below, nor is it an “argument[] by extension[.]”   Gill v. INS,

420 F.3d 82, 86-87 (2d Cir. 2005).   Accordingly, the argument

is unexhausted and we will not consider it.1 See Zhong v. U.S.

Dep’t of Justice, 480 F.3d 104, 118-19 (2d Cir. 2006).

    Vaskovska also argues that the particularly serious crime

determination was flawed because the agency erroneously relied

on Matter of Y-L-, 23 I. & N. Dec. at 276, and its presumption

that drug trafficking convictions are particularly serious

because they are aggravated felonies.   However, the BIA

expressly stated that Vaskovska’s “offense was a simple

possession offense, and was not an aggravated felony,” but

determined that it was a particularly serious crime under the

1
 Because this argument is unexhausted, we express no view as
to whether there are indeed two distinct “steps” to the
particularly serious crime determination, as the N-A-M-
decision appears to hold.

                              6
circumstances.    C.A.R. 500.2   It apparently relied on Y-L- for

the general proposition that crimes involving drug trafficking

are particularly serious, which was relevant for purposes of

the individualized inquiry in this case because Vaskovska

testified before the IJ that she sold drugs in connection with

her conviction.

    We lack jurisdiction to consider the agency’s particularly

serious crime determination to the extent that its decision is

based on the facts and circumstances of Vaskovska’s underlying

crime.   Although we retain jurisdiction to review whether the

agency applied the correct legal standard, we lack jurisdiction

to review the agency’s weighing of the discretionary factors.3

See 8 U.S.C. § 1252(a)(2)(C), (D); see also Argueta v. Holder,

617 F.3d 109, 112 (2d Cir. 2010); Nethagani, 532 F.3d at 155.


2
 There are two administrative records    in this case, the first
docketed with the initial petition in    No. 14-4382, and the
second with the later petition in No.    15-145. Our citations
are to the record filed in No. 15-145    at Docket No. 64.
3
 Vaskovska argues that the agency erred by not considering
mitigating factors, including her serious mental illness.
However, personal circumstances such as mental illness are not
among the listed Frentescu factors and we lack jurisdiction to
consider the agency’s evaluation of the facts and circumstances
of the case.

                                 7
Here, the record shows that the agency considered Vaskovska’s

testimony and an investigative report in determining that,

while Vaskovska pled guilty to unlawful possession, the

circumstances of her offense involved the sale of a large

quantity of narcotic pain medication for approximately $1,200,

and a substantial sentence of three years in prison.4

Accordingly, the agency neither mischaracterized the nature of

Vaskovska’s conviction nor misapplied the legal standard when

determining that she committed a particularly serious crime.

    Next, Vaskovska and amici argue that the BIA’s

interpretation of what constitutes a particularly serious crime

contravenes the language of the asylum and withholding statutes

as well as the Refugee Convention.    See 8 U.S.C.

§§ 1158(b)(2)(A)(ii) (asylum), 1231(b)(3)(B)(ii) (withholding

of removal).   They argue that the BIA’s interpretation of what

constitutes a particularly serious crime is too broad, as both

Congress and the United Nations intended only exceptionally

grave convictions to be particularly serious.    However, in

Frentescu, 18 I. & N. Dec. at 247, the BIA set the standard for

4
 She ultimately served eight months in prison under a shock
incarceration program.

                               8
determining whether a crime is particularly serious, and

refined that standard in N-A-M-, 24 I. & N. Dec. at 338-44.    We

have deferred to the BIA’s interpretation.   Nethagani, 532 F.3d

at 154-55 & n.1.5

    Vaskovska and amici also argue that, in determining whether

a person has been convicted of a particularly serious crime,

the BIA is required to engage in a separate and independent

analysis of whether an alien is a danger to the community.    The

INA provides that asylum and withholding of removal will not

be granted to a noncitizen who “having been convicted by a final

judgment of a particularly serious crime, constitutes a danger

to the community of the United States.”      8 U.S.C.

§ 1158(b)(2)(A)(ii) (asylum); id. § 1231(b)(3)(B)(ii)

(withholding of removal).   The BIA has held that the

5
 This argument is also inconsistent with the expansive list of
crimes that are “aggravated felonies,” and therefore
presumptively particularly serious in the context of asylum,
8 U.S.C. § 1158(b)(2)(B)(i), and in connection with an
application for withholding of removal if a person received a
five-year sentence, id. § 1231(b)(3)(B). Many offenses that
do not come within Vaskovska’s and amici’s extremely narrow
categorization of what constitutes a particularly serious
offense are aggravated felonies under the INA. See id.
§ 1101(a)(43) (aggravated felonies include, inter alia, drug
trafficking, disclosing classified information, failure to
appear to serve a sentence of five years or more, perjury, and
obstruction of justice).
                               9
dangerousness inquiry is subsumed within the analysis of

whether the crime is particularly serious and does not require

a separate inquiry into an individual’s danger to the community.

Matter of Carballe, 19 I. & N. Dec. 357, 360 (B.I.A. 1986); see

Matter of G-G-S-, 26 I. & N. Dec. 339, 347 (B.I.A. 2014) (“[T]he

focus in a particularly serious crime analysis is whether the

offense justifies a determination that the respondent is a

danger to the community[.]” (emphasis added) (internal

quotation marks omitted)).   We have on several occasions

accepted that interpretation, and we are bound by those prior

decisions.   E.g., Ahmetovic v. INS, 62 F.3d 48, 53 (2d Cir.

1995); Flores v. Holder, 779 F.3d 159, 167 (2d Cir. 2015) (“We

have accorded Chevron deference . . . to the BIA’s

interpretation that no separate danger to the community

analysis is required when determining whether a crime is

particularly serious.”).

    Accordingly, the agency did not err in determining that

Vaskovska’s conviction was for a particularly serious crime

rendering her ineligible for asylum and withholding of removal.

Because the particularly serious crime determination is

dispositive of Vaskovska’s asylum application, we decline to
                              10
consider her arguments regarding the timeliness of that

application.    See INS v. Bagamasbad, 429 U.S. 24, 25 (1976).

Deferral of Removal under the CAT

    Like asylum and withholding of removal, our review of

Vaskovska’s CAT claim is limited to constitutional claims and

questions of law.   8 U.S.C. § 1252(a)(2)(C), (D); see

Ortiz-Franco v. Holder, 782 F.3d 81, 86 (2d Cir. 2015).

    Deferral under the CAT is a mandatory form of relief that

requires an applicant to show that it is more likely than not

that she will be tortured in the country of removal.     8 C.F.R.

§ 1208.17(a).   If those who would harm the applicant are not

government actors, the applicant must also show that government

officials will acquiesce in her torture.      An applicant thus

must demonstrate that “government officials know of or remain

willfully blind to an act and thereafter breach their legal

responsibility to prevent it.”      Khouzam v. Ashcroft, 361 F.3d

161, 171 (2d Cir. 2004).

    Vaskovska argues that the agency applied the wrong legal

standard for acquiescence.   However, the IJ stated that

“[a]cquiescence requires that the public official have prior

awareness of the activity and thereafter breach his or her legal
                               11
responsibility to intervene to prevent such activity” and then

considered the country conditions in Ukraine that relate to

domestic violence.    C.A.R. 676.   The IJ noted that domestic

violence against women in Ukraine remained “a serious problem”

but “the government of Ukraine, including the police, have taken

proactive steps to attempt to curb domestic violence.”   C.A.R.

676, 677.   Accordingly, he accurately stated and applied the

standard.   See Khouzam, 361 F.3d at 171.    Vaskovska’s other

argument challenges “the correctness of [the] IJ’s

fact-finding[s]” and thus does not present a question of law

that we may review.   Xiao Ji Chen v. U.S. Dep’t of Justice, 471

F.3d 315, 329 (2d Cir. 2006).6




6
 In particular, Vaskovska contends that the IJ mischaracterized
the evidence in concluding that she “remained in . . . Ukraine
from the age of 5 until approximately 17 apparently without harm
from her father.” C.A.R. 675. Although she points to evidence
in the record in an attempt to contradict this finding, that
evidence details a single incident when Vaskovska’s father
threatened her mother with a gun. While certainly traumatic,
the evidence does not show that Vaskovska was physically harmed.
Thus, the IJ did not “unambiguously mischaracterize a central
element of the record.” Liu v. INS, 508 F.3d 716, 720 (2d Cir.
2007).

                               12
         For the foregoing reasons, the petitions for review

are DENIED.

                           FOR THE COURT:
                           Catherine O=Hagan Wolfe, Clerk




                            13
