                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 11-1023


TAM DUY PHAM,

                Petitioner,

          v.

ERIC H. HOLDER, JR., Attorney General,

                Respondent.


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


Submitted:   July 7, 2011                   Decided:    August 5, 2011


Before MOTZ and    SHEDD,   Circuit   Judges,   and   HAMILTON,   Senior
Circuit Judge.


Petition denied by unpublished per curiam opinion.


Dev A. Kayal, WEBB & KAYAL, Chartered, Silver Spring, Maryland,
for Petitioner.   Tony West, Assistant Attorney General, Richard
M. Evans, Assistant Director, Jeffrey J. Bernstein, 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Unpublished opinions are not binding precedent in this circuit.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:

               Tam    Duy     Pham,      a   native         and     citizen      of     Viet    Nam,

petitions      for     review      an     order        of    the     Board      of     Immigration

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

judge’s order finding him removable for having been convicted of

an    aggravated       felony,      under        Immigration          and    Nationality         Act

(“INA”)     § 237(a)(2)(A)(iii),                 8     U.S.C.A.          § 1227(a)(2)(A)(iii)

(West 2005 & Supp. 2011), as aggravated felony is defined under

INA     §§ 101(a)(43)(B),               101(a)(43)(U),             and    for        having     been

convicted       of      a    controlled           substance          offense,           under    INA

§ 237(a)(2)(B)(i), 8 U.S.C.A. § 1227(a)(2)(B)(i).                                      We deny the

petition for review.

               Under         INA          § 237(a)(2)(A)(iii),                     8      U.S.C.A.

§ 1227(a)(2)(A)(iii),              an    alien        is    removable        for       having   been

convicted of an aggravated felony at any time after admission.

Under    INA    § 101(a)(43)(B),             8    U.S.C.A.          § 1101(a)(43)(B)            (West

2005    &   Supp.      2011),      an     aggravated          felony       includes       “illicit

trafficking in a controlled substance . . . including a drug

trafficking crime (as defined in section 924(c) of Title 18)[.]”

In addition, a conviction for a conspiracy to commit a drug

trafficking          crime    is    also     an       aggravated         felony.          See     INA

§ 101(a)(43)(U); 8 U.S.C.A. § 1227(a)(43)(U).                                Under 18 U.S.C.

§ 924(c)(2) (2006), a drug trafficking crime means any felony

punishable      under        the   Controlled           Substances          Act.        Under    INA

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§ 237(a)(2)(B)(i),               8    U.S.C.A.       § 1227(a)(2)(B)(i),             an    alien    is

removable for having been convicted of a controlled substance

offense at any time after admission.

              Although           this    court        lacks      jurisdiction        to    review    a

final      removal      order         based     on    a      finding    that     the      alien    was

convicted         of        an       aggravated          felony,       this      court       retains

jurisdiction to determine whether Pham is an alien and whether

he stood convicted of an aggravated felony.                                    See Ramtulla v.

Ashcroft, 301 F.3d 202, 203 (4th Cir. 2002).                               We do not defer to

the    Board’s      determination              that      a   particular       state       conviction

qualifies as an aggravated felony.                           See Soliman v. Gonzales, 419

F.3d       276,        281       (4th     Cir.           2005)      (recognizing           that     an

interpretation of a state criminal statute is not within the

Board’s authority or expertise).

              We conclude that in this instance, Pham’s conviction

for conspiracy to distribute less than ½ ounce of marijuana, in

violation of Va. Code Ann. § 18.2–256 (2009), qualifies as both

an     aggravated           felony      and     a     controlled         substance         offense. *

Accordingly,           because          Pham     was         removable     for       having       been

convicted      of      an    aggravated         felony,        we   deny      the    petition      for

review.       We dispense with oral argument because the facts and

legal      contentions           are    adequately           presented     in       the   materials

       *
           Pham acknowledged he was a native and citizen of Viet Nam.



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before   the   court   and   argument   would   not   aid   the   decisional

process.



                                                            PETITION DENIED




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