                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 09-2333


XU PEI GAO,

                 Petitioner,

          v.

ERIC H. HOLDER, JR., Attorney General,

                 Respondent.



On Petition for Review of an Order of the Board of Immigration
Appeals.


Submitted:    June 8, 2010                   Decided:   August 20, 2010


Before GREGORY, DAVIS, and KEENAN, Circuit Judges.


Petition dismissed in part and denied in part by unpublished per
curiam opinion.


Xu Pei Gao, Petitioner Pro Se. Brianne Whelan Cohen, Office of
Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

               Xu    Pei    Gao,      a    native         and    citizen    of     the       People’s

Republic of China, petitions for review of an order of the Board

of Immigration Appeals (“Board”) dismissing his appeal from the

immigration judge’s denial of his motion to reopen.                                          For the

reasons discussed below, we dismiss the petition for review in

part and deny the petition for review in part.

               Pursuant to 8 U.S.C. § 1252(a)(2)(C) (2006), we lack

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

(2006), to review the final order of removal of an alien who is

removable          for    having      been       convicted         of     certain       enumerated

crimes, including a firearms offense.                               Because Gao was found

removable for having been convicted of a firearms offense, under

§ 1252(a)(2)(C), we have jurisdiction only “to review factual

determinations             that           trigger          the         jurisdiction-stripping

provision, such as whether [Gao] [i]s an alien and whether []he

has    been     convicted        of       [a   firearms          offense].”         Ramtulla        v.

Ashcroft, 301 F.3d 202, 203 (4th Cir. 2002).                                    Once we confirm

these     two       factual        determinations,               then,      under        8    U.S.C.

§ 1252(a)(2)(C),            (D),      we       can       only    consider        “constitutional

claims or questions of law.”                         See Mbea v. Gonzales, 482 F.3d

276,    278    n.1       (4th   Cir.      2007).          Based     on    our    review       of    the

record,       we    find    that      Gao      is    indeed       an     alien    who    has       been

convicted of a firearms offense, and § 1252(a)(2)(C) divests us

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of jurisdiction over the petition for review absent a colorable

constitutional claim or question of law.

               Gao first challenges the finding that he was convicted

of an aggravated felony – a finding that rendered him ineligible

for asylum and withholding of removal.                      We have jurisdiction to

review this question of law.                  See Mbea, 482 F.3d at 279.               Based

on our review of the record, we find that Gao’s conviction under

Virginia law for robbery constituted a “crime of violence” as

defined      in    18    U.S.C.     §    16     (2006),     and    was   therefore        an

aggravated        felony.        See     8    U.S.C.    §    1101(a)(43)(F)        (2006);

Williams v. Virginia, 685 S.E.2d 178, 180 (Va. 2009) (defining

robbery as “the taking, with intent to steal, of the personal

property of another, from his person or in his presence, against

his    will,      by    violence        or    intimidation”)       (emphasis       added).

Because Gao was convicted of an aggravated felony for which he

was sentenced to a term of more than five years, we agree that

he    was   convicted     of    a   “particularly         serious     crime”     for   both

asylum      and    withholding      of       removal   purposes.         See   8    U.S.C.

§§ 1158(b)(2)(B)(i),            1231(b)(3)(B)(iv)           (2006).      We    therefore

find    that      the   Board   correctly          determined     that   Gao’s     robbery

conviction rendered him ineligible for asylum and withholding of

removal under both the INA and the Convention Against Torture.

See    8    U.S.C.      §§ 1158(b)(2)(A),           1231(b)(3)(B)(ii);         8   C.F.R.

§ 1208.16(d)(2) (2010).

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           Gao next argues that the Board erred in finding that

he failed to meet his burden of establishing his eligibility for

deferral     of    removal      under     the     Convention       Against       Torture.

Because    Gao      fails      to   raise       any    constitutional          claims     or

questions of law in regard to the Board’s denial of deferral of

removal,     we    lack     jurisdiction        over       this   claim   pursuant        to

§ 1252(a)(2)(C).          See Saintha v. Mukasey, 516 F.3d 243 (4th Cir.

2008)   (holding        that   Convention       Against      Torture     determinations

are reviewed for substantial evidence and “because we only apply

that standard to factual determinations, the [Board’s Convention

Against Torture] determination . . . is properly characterized

as factual, not legal, in nature”).                    We therefore dismiss this

portion of the petition for review.

           Finally, we have reviewed Gao’s remaining claims, to

the extent that they raise a constitutional claim or question of

law, and find them without merit.                     We note that Gao, who was

convicted following a jury trial, is ineligible for relief under

former § 212(c) as such relief remains available only to lawful

permanent residents (of at least seven years) whose convictions

were obtained through plea agreements and who would have been

eligible   for      a    waiver     of   removal      at    the   time    of    the     plea

agreement.        8 U.S.C. § 1182(c) (1994) (repealed 1996); 8 C.F.R.

§ 1212.3(h) (2010); INS v. St. Cyr, 533 U.S. 289, 326 (2001).

Additionally,       his     aggravated      felony         conviction     renders        him

                                            4
ineligible   for    a   § 212(h)       waiver    of    inadmissibility.       See    8

U.S.C. § 1182(h) (2006); Mbea, 482 F.3d at 279.                          It likewise

renders   him    ineligible      for     cancellation     of    removal.      See    8

U.S.C. § 1229b(a) (2006).

           Accordingly,       we   dismiss       the   petition    for    review    in

part and deny the petition for review in part.                    We dispense with

oral   argument     because      the     facts   and    legal     contentions      are

adequately      presented   in     the    materials      before    the    court    and

argument would not aid the decisional process.



                                                      PETITION DISMISSED IN PART
                                                              AND DENIED IN PART




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