                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 15a0734n.06


                                          No. 14-3804

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                                                                     FILED
SARMED MICHAEL HANNA,                                                           Nov 03, 2015
                                                                            DEBORAH S. HUNT, Clerk
       Petitioner,
v.
                                                     ON PETITION FOR REVIEW FROM
LORETTA E. LYNCH, Attorney                           THE BOARD OF IMMIGRATION
General,                                             APPEALS

       Respondent.


                                           ORDER


BEFORE:        KEITH and CLAY, Circuit Judges; MARBLEY, District Judge.

       Petitioner Sarmed Michael Hanna, a native and citizen of Iraq, seeks judicial review of

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

decision of an immigration judge (“IJ”) denying on discretionary grounds his application for

asylum. We dismiss Hanna’s petition for review.

       Hanna crossed the U.S.-Mexico border without inspection in flight from ethnic and

political persecution in Iraq, and was subsequently granted asylum and withholding of removal

by an IJ on May 7, 1999. On September 2, 2005, his status was adjusted to that of a lawful

permanent resident. On July 14, 2009, Hanna was pulled over for speeding by two police

officers in Nevada. During the stop, Hanna gave written consent to a search of his vehicle. With

the use of a police dog, officers discovered thirty eight bags containing over five thousand grams
No. 14-3804, Hanna v. Lynch


of marijuana stashed in the panels of the car doors. Hanna eventually pled guilty to “knowingly

and intentionally” possessing a controlled substance in violation of Nevada Revised Statute

§ 453.336. Pursuant to the plea agreement he entered into with the prosecution, Hanna was

given a five year “suspended” sentence to be served on probation.

       In light of his criminal conviction for a controlled substance violation, the Department of

Homeland Security placed Hanna in detention and removal proceedings in January 2014. An IJ

sustained the charges of removability under 8 U.S.C. § 1227(a)(2)(B)(i). After the IJ’s finding of

removability, Hanna applied for various forms of relief, including withholding of removal and

asylum. The IJ subsequently granted Hanna withholding of removal based on the government’s

stipulation that there was a clear probability that he would be subjected to persecution in Iraq.

The IJ found that Hanna was eligible for asylum, but exercised her discretion to deny him

asylum based on his convictions for possession of marijuana. Although she found that Hanna

had testified credibly that he did not know how the drugs came to be in his vehicle, the IJ relied

on the fact that Hanna pled guilty to knowingly or intentionally possessing a controlled substance

and the reality that an inordinate amount of drugs were found in his vehicle.

       In a brief written opinion authored by a single member of the BIA, the BIA agreed with

the IJ that Hanna had not “met his burden of showing that his favorable equities outweigh the

negative factors,” including his convictions for possession of a controlled substance.

       Because Hanna was convicted of a criminal offense relating to a controlled substance, see

8 U.S.C. § 1252(a)(2)(C), this Court lacks jurisdiction to review his petition unless it presents

“constitutional claims or questions of law.” 8 U.S.C. § 1252(a)(2)(D). Hanna contends that the

BIA erred by failing either to credit or reject the IJ’s favorable credibility finding when it upheld

the IJ’s decision to deny Hanna’s asylum claim. We find that Hanna’s argument “constitutes



                                                 2
No. 14-3804, Hanna v. Lynch


nothing more than a challenge to the BIA’s discretionary and fact-finding exercises cloaked as a

question of law.” Abdul v. Holder, 326 F. App’x 344, 347 (6th Cir. 2009) (quoting Garcia-

Aguillon v. Mukasey, 524 F.3d 848, 850 (8th Cir. 2008)). Although some courts have found that

it may be an error of law where material facts have been “totally overlooked” or “seriously

mischaracterized” by the BIA, see Navarro v. Holder, 505 F. App’x 441, 445 (6th Cir. 2012), we

find that this is not such a case because the BIA upheld the IJ’s finding that the conviction for

possession of a controlled substance outweighed the other factors that might merit a favorable

exercise of discretion. See id. at 446.

       Additionally, because Hanna demonstrated no substantial issue of fact or law in his

appeal of the IJ’s decision, we need not reach the question of whether we have jurisdiction to

review the BIA’s failure to refer his appeal to a three-member panel.             See 8 C.F.R.

§ 1003.1(d)(2)(i) (2015).

       Accordingly, we DISMISS Hanna’s petition for review for lack of jurisdiction.

                                            ENTERED BY ORDER OF THE COURT




                                            Deborah S. Hunt, Clerk




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