                               PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 14-2036


JOSE HERNANDEZ-NOLASCO,

                Petitioner,

           v.

LORETTA E. LYNCH, Attorney General,

                Respondent.



                              No. 14-2346


JOSE HERNANDEZ-NOLASCO,

                Petitioner,

           v.

LORETTA E. LYNCH, Attorney General,

                Respondent.



On Petitions for Review of Orders of the Board of Immigration
Appeals.


Argued:   October 28, 2015                  Decided:   December 4, 2015


Before WILKINSON, KEENAN, and THACKER, Circuit Judges.
Petitions for review dismissed in part and denied in part by
published opinion.    Judge Keenan wrote the opinion, in which
Judge Wilkinson and Judge Thacker joined.


ARGUED: Mariam Masumi, JOHNSON & ASSOCIATES, P.C., Arlington,
Virginia, for Petitioner.    Edward Earl Wiggers, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.        ON
BRIEF:   Randall  L.   Johnson,  JOHNSON   &  ASSOCIATES,   P.C.,
Arlington, Virginia, for Petitioner.   Benjamin C. Mizer, Acting
Assistant Attorney General, Civil Division, Mary Jane Candaux,
Assistant Director, Office of Immigration Litigation, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.




                                2
BARBARA MILANO KEENAN, Circuit Judge:

       Jose Hernandez-Nolasco, a native and citizen of Honduras,

petitions       for    review      of:    (1)       a     decision    of    the   Board     of

Immigration Appeals (BIA) ordering his removal from the United

States;     and       (2)   the     BIA   decision          denying     his   motion       for

reconsideration.            Hernandez-Nolasco argues in these consolidated

petitions    that       the   BIA    erred      in      affirming     the   ruling    of    an

immigration judge (IJ) that Hernandez-Nolasco had been convicted

of a “particularly serious crime,” which under the Immigration

and Nationality Act (INA), 8 U.S.C. § 1231(b)(3)(B), and under

the    United     Nations      Convention           Against    Torture      (CAT),    see   8

C.F.R. § 1208.16(d)(2), rendered him ineligible for withholding

of removal.        Hernandez-Nolasco also contends that the IJ erred

in concluding that he is not entitled to deferral of removal

under the CAT, 8 C.F.R. § 1208.17(a).                         We dismiss in part and

deny in part Hernandez-Nolasco’s petitions, because the IJ and

the BIA did not err in determining any questions of law, and we

lack    jurisdiction          to    review          the     IJ’s     underlying      factual

findings.

                                             I.

       Hernandez-Nolasco is a 23-year-old citizen of Honduras.                              He

left Honduras and eventually entered the United States without

authorization in 2009, when he was 17 years of age.



                                                3
       In 2012, Hernandez-Nolasco was indicted by a grand jury in

Fairfax County, Virginia, and charged with possession of cocaine

with    the intent      to   distribute       in    violation      of    Virginia        Code

§ 18.2-248.       Hernandez-Nolasco           entered     a   guilty      plea      to    the

charge in the indictment, and was convicted and sentenced to a

five-year term of imprisonment, which the court suspended.

       The Department of Homeland Security (DHS) later issued a

Notice of Intent to Issue a Final Administrative Removal Order

to    Hernandez-Nolasco,      who   responded        by   requesting        withholding

and    deferral    of   removal.       In      an    interview       with      an    asylum

officer,      Hernandez-Nolasco      related         that     a    gang     leader        had

murdered his father and brother in Honduras.                       Hernandez-Nolasco

further stated that he ultimately had left Honduras after having

been kidnapped and threatened by the same gang.

       The    asylum    officer     concluded         that        Hernandez-Nolasco’s

account was credible and that he had established a reasonable

fear of persecution if removed to Honduras.                         Accordingly, the

asylum       officer    referred    Hernandez-Nolasco               to    an        IJ   for

“withholding only” proceedings to consider the limited question

whether Hernandez-Nolasco was entitled to withholding of removal

under the INA or the CAT, or deferral of removal under the CAT.

See     8     C.F.R.     § 208.31(e)        (describing            “withholding-only”

proceedings).



                                          4
     The IJ determined that Hernandez-Nolasco was not entitled

to relief under either the INA or the CAT.                   The IJ found that

Hernandez-Nolasco had been sentenced to a term of five years’

imprisonment for a drug trafficking crime, which constituted a

“particularly       serious     crime”   barring    him   from    withholding    of

removal relief.          The IJ found that Hernandez-Nolasco had not met

his evidentiary burden to establish that he would be subject to

torture, and that the government of Honduras would acquiesce in

such torture, if he were removed to Honduras.                    Accordingly, the

IJ ruled that Hernandez-Nolasco was not entitled to deferral of

removal under the CAT.

     Hernandez-Nolasco appealed the IJ’s order to the BIA.                      The

BIA adopted and affirmed the IJ’s decision on the basis that the

IJ’s factual findings were not clearly erroneous, and that the

IJ’s legal conclusions were correct.                 Hernandez-Nolasco later

filed   a    motion       for   reconsideration,     which      the   BIA   denied.

Hernandez-Nolasco filed the present petitions for review with

this Court.

                                         II.

     We review questions of law arising from decisions of the

BIA de novo.            Yanez-Marquez v. Lynch, 789 F.3d 434, 444 (4th

Cir. 2015).        And when, as here, the BIA decision expressly has

adopted     the    underlying     decision     of   the   IJ,    we   review   both

decisions.        Id.

                                          5
     Hernandez-Nolasco argues that the IJ and the BIA erred in

concluding    that    he    was    convicted       of    a   “particularly           serious

crime,” rendering him ineligible for relief under either the INA

or the CAT.        He does not dispute that he was convicted of the

crime of possession with intent to distribute cocaine.                           Instead,

Hernandez-Nolasco contends that this crime of conviction was not

“particularly       serious”      within     the    contemplation         of     8    U.S.C.

§ 1231(b)(3)(B)(ii)        because     the      crime    was      not    an    “aggravated

felony.”     See id.       He also asserts that under the BIA decision

of In re Y-L-, 23 I. & N. Dec. 270, 273 (BIA 2002), his case

presents    “unusual       circumstances,”         and   that      the    IJ     erred       in

failing to receive evidence concerning this subject.                            According

to Hernandez-Nolasco, had the IJ done so, the IJ could have

weighed the exceptional factors discussed in In re Y-L-, and

considered    the    relevant      facts     that    Hernandez-Nolasco               had    not

committed     other        crimes,     and       that        he    had        acknowledged

responsibility       for     his     single      crime.           We     disagree          with

Hernandez-Nolasco’s argument.

     An    alien     is    entitled    to       withholding        of    removal       to     a

particular country if the alien would be persecuted on return to

that country on account of his membership in a particular social

group.     8 U.S.C. § 1231(b)(3)(A).                However, an alien who has

been convicted of a “particularly serious crime” and, thus, “is



                                            6
a danger to the community” is not eligible for withholding of

removal.         Id. § 1231(b)(3)(B); 8 C.F.R. § 1208.16(d)(2).

       As relevant here, any alien who has been convicted of an

“aggravated felony . . . for which the alien has been sentenced

to    an   aggregate        term    of    imprisonment              of   at   least      5    years”

automatically          is    deemed      to     have       committed          a    “particularly

serious crime.”             8 U.S.C. § 1231(b)(3)(B); In re Y-L-, 23 I. &

N. Dec. at 273.             The INA defines the term “aggravated felony” to

include “a drug trafficking crime.”                        8 U.S.C. § 1101(a)(43)(B).

A drug trafficking offense committed in violation of state law

automatically qualifies as a “drug trafficking crime” under this

section if the defendant was convicted under a state statute

that proscribes conduct necessarily punishable as a felony under

the     Controlled Substances Act (CSA), 21 U.S.C. § 801 et seq.

See 18      U.S.C.       § 924(c)(2);         Moncrieffe            v.   Holder,       133    S.    Ct.

1678, 1684–85 (2013).               Therefore, if an alien is convicted of a

state crime that necessarily would constitute a felony under the

CSA, the alien’s crime of conviction qualifies as an “aggravated

felony.”

       Hernandez-Nolasco            concedes        that       he    was   charged       with       and

convicted         of   possession        with    intent         to       distribute          cocaine.

Under      the    CSA,    when     the   controlled         substance         involved         in   an

offense is cocaine, possession with intent to distribute that

substance        always      is    punishable       as     a    felony.           21    U.S.C.      §§

                                                7
841(a),     841(b)(1)(C);    21   C.F.R.       §    1308.12.         Therefore,

Hernandez-Nolasco’s       crime   of       conviction       qualifies   as     an

“aggravated felony” under the INA.            See Moncrieffe, 133 S. Ct.

at 1686.

     This “aggravated felony” conviction, for which Hernandez-

Nolasco received a sentence of five years’ imprisonment, is per

se   a      “particularly     serious        crime”        under    8    U.S.C.

§ 1231(b)(3)(B).       See Gao v. Holder, 595 F.3d 549, 555 (4th Cir.

2010).     Thus, the “unusual circumstances” discussed in In re Y-

L-, which may be considered when the sentence imposed for an

aggravated felony is less than five years, are irrelevant to the

present case.      See In re Y-L-, 23 I. & N. Dec. at 273–74.

Accordingly, we hold that the IJ and the BIA did not err in

determining     that     Hernandez-Nolasco          was     convicted    of     a

“particularly    serious     crime”    rendering          him   ineligible    for

withholding of removal under the INA and the CAT.                  See 8 U.S.C.

§ 1231(b)(3)(B); 8 C.F.R. § 1208.16(d)(2).                For the same reason,

we further hold that the BIA did not abuse its discretion in

denying    Hernandez-Nolasco’s    motion      for   reconsideration     of    its

ruling.    See Jean v. Gonzales, 435 F.3d 475, 483 (4th Cir. 2006)

(affirming a BIA denial of a motion to reconsider when the BIA

provided a rational explanation for its decision).




                                       8
                                     III.

     We do not reach the merits of Hernandez-Nolasco’s argument

that the IJ and the BIA erred in concluding that he failed to

meet his evidentiary burden to establish that he qualifies for

deferral    of     removal   under   the        CAT.       The    INA   limits    our

jurisdiction over final orders of removal involving convictions

“relating        to   a      controlled         substance.”              8     U.S.C.

§§ 1182(a)(2)(A)(i)(II), 1252(a)(2)(C).                  In such cases, we have

jurisdiction only to review “constitutional claims or questions

of law.”        8 U.S.C. § 1252(a)(2)(D).              Because Hernandez-Nolasco

was convicted of a state crime involving a controlled substance,

we lack jurisdiction to review questions of fact underlying the

present order denying him deferral of removal.                      In particular,

Hernandez-Nolasco’s argument that he is likely to be tortured

upon return to Honduras raises a purely factual question.                         See

Saintha    v.    Mukasey,    516   F.3d       243,   249–50      (4th   Cir.   2008).

Accordingly, we do not have jurisdiction to consider the merits

of his claim for deferral of removal under the CAT.

                                      IV.

     For these reasons, we dismiss in part, and deny in part,

Hernandez-Nolasco’s petitions for review.

                                               PETITIONS FOR REVIEW DISMISSED
                                                   IN PART AND DENIED IN PART




                                          9
