     15-2973
     Dennis v. Sessions
                                                                                    BIA
                                                                               Straus, IJ
                                                                           A040 087 088

                               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.

 1        At a stated term of the United States Court of Appeals
 2   for the Second Circuit, held at the Thurgood Marshall
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 26th day of February, two thousand
 5   eighteen.
 6
 7   PRESENT:
 8            DENNIS JACOBS,
 9            PETER W. HALL,
10            DEBRA ANN LIVINGSTON,
11                 Circuit Judges.
12   _____________________________________
13
14   BALTIMORE BARNETT DENNIS,
15            Petitioner,
16
17                        v.                                     15-2973
18                                                               NAC
19   JEFFERSON B. SESSIONS III,
20   UNITED STATES ATTORNEY GENERAL,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                      Elyssa N. Williams, Formica
25                                        Williams, P.C., New Haven, CT.
26
27   FOR RESPONDENT:                      Benjamin C. Mizer, Principal
28                                        Deputy Assistant Attorney General;
29                                        Terri J. Scadron, Assistant
30                                        Director; Margot L. Carter, Trial
31                                        Attorney, Office of Immigration
32                                        Litigation, United States
1                              Department of Justice, Washington,
2                              DC.
3
4
5        UPON DUE CONSIDERATION of this petition for review of a

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

7    ORDERED, ADJUDGED, AND DECREED that the petition for review

8    is DENIED.

9        Petitioner Baltimore Barnett Dennis, a native and citizen

10   of Jamaica, seeks review of a September 8, 2015, decision of

11   the BIA, affirming a May 27, 2015, decision of an Immigration

12   Judge (“IJ”) denying Dennis’s application for withholding of

13   removal under the Immigration and Nationality Act (“INA”) and

14   the Convention Against Torture (“CAT”).          In re Baltimore

15   Barnett Dennis, No. A040 087 088 (B.I.A. Sept. 8, 2015), aff’g

16   No. A040 087 088 (Immig. Ct. Hartford May 27, 2015).          We

17   assume the parties’ familiarity with the underlying facts and

18   procedural history in this case.

19       Under the circumstances of this case, we have reviewed

20   both the IJ’s and the BIA’s decisions “for the sake of

21   completeness.”   Wangchuck v. Dep’t of Homeland Sec., 448

22   F.3d 524, 528 (2d Cir. 2006).       Dennis’s underlying

23   controlled substance offense conviction limits our
                                     2
1    jurisdiction to constitutional claims and questions of law.

2    See 8 U.S.C. §§ 1252(a)(2)(C), (D), 1227(a)(2)(B)(i).

3    Whether an alien has been convicted of a particularly

4    serious crime is a question of law over which we have

5    jurisdiction.      See Nethagani v. Mukasey, 532 F.3d 150, 154-

6    55 (2d Cir. 2008).

7        An alien is barred from withholding of removal (under

8    both the INA and the CAT) if he has been convicted of a

9    particularly serious crime.          8 U.S.C. § 1231(b)(3) (INA); 8

10   C.F.R. § 1208.16(d)(2) (CAT).            If, as here, the crime is

11   not per se particularly serious, the agency “examine[s] the

12   nature of the conviction, the type of sentence imposed, and

13   the circumstances and underlying facts of the conviction.”

14   Matter of N-A-M-, 24 I. & N. Dec. 336, 342 (B.I.A. 2007);

15   see also Nethagani, 532 F.3d at 154 n.1, 155.

16       The IJ stated that Dennis’s “conviction in 2012 [for]

17   possession with intent to sell narcotics” “is clearly a

18   particularly serious crime” “based on the length of the

19   sentence   and    the     seriousness     of    the    offense,”   Certified

20   Administrative         Record   (“CAR”)    at    43.      Dennis    has   two

21   convictions      for    possession   with       intent   to   sell/dispense
                                          3
1    (marijuana) on the same day in 2012, which resulted from

2    different arrests nearly two months apart, and was sentenced

3    to six years in prison.

4         Dennis argues chiefly:    that the bar applies only if the

5    crime was particularly serious and if the alien is a danger

6    to   the   community;   that   the   marijuana   convictions   for

7    possession with intent are not all that serious because (as

8    he contends) the drug was for personal use to self-medicate

9    his stutter with a tea infusion; and that he is not a danger

10   to the community. The argument that the marijuana was for

11   personal use is incompatible with conviction for possession

12   with intent to distribute.     Moreover, the IJ concluded that

13   possession with intent is a particularly serious offense and

14   that the seriousness is in part reflected by the length of

15   the sentence.    While the length of sentence is not alone

16   enough, Matter of N-A--, 24 I. & N. Dec. at 324, and the IJ

17   should not consider that they were two convictions, the length

18   of sentence is a fact properly considered and there is no

19   sign that the IJ excessively relied upon the sentence or

20   relied at all on the fact that there were two convictions.

21        As to Dennis’s argument that the agency was required to
                                      4
1    engage in a separate analysis of whether he is a danger to

2    the   community,   his   argument       is   explicitly   foreclosed   by

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

4    accorded Chevron deference . . . to the BIA’s interpretation

5    that no separate danger to the community analysis is required

6    when determining whether a crime is particularly serious.”).

7          For the foregoing reasons, the petition for review is

8    DENIED.    As we have completed our review, any stay of removal

9    that the Court previously granted in this petition is VACATED,

10   and any pending motion for a stay of removal in this petition

11   is DISMISSED as moot.     Any pending request for oral argument

12   in this petition is DENIED in accordance with Federal Rule of

13   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

14   34.1(b).

15                                  FOR THE COURT:
16                                  Catherine O’Hagan Wolfe, Clerk




                                         5
