                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 15-1005


JOSE ABILIO CARCAMO,

                Petitioner,

           v.

LORETTA E. LYNCH, Attorney General,

                Respondent.



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


Argued:   January 28, 2016                  Decided:   May 6, 2016


Before TRAXLER, Chief Judge, and AGEE and WYNN, Circuit Judges.


Petition for review denied in part and dismissed in part by
unpublished opinion. Judge Wynn wrote the opinion, in which
Chief Judge Traxler and Judge Agee joined.


ARGUED: Brian Patrick Casson, JOHNSON & ASSOCIATES, P.C.,
Arlington,   Virginia,   for  Petitioner.      Carlton   Frederick
Sheffield, 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, Principal Deputy Assistant Attorney General, Erica B.
Miles,   Senior   Litigation  Counsel,   Office   of   Immigration
Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.




                                2
WYNN, Circuit Judge:

        Jose Abilio Carcamo petitions for review of the Board of

Immigration Appeals’s (BIA’s) decision finding that Carcamo was

an “aggravated felon” under the Immigration and Nationality Act

(INA) and denying his applications for relief from removal.                                    We

hold     that      the        District      of        Columbia’s           criminal        statute

proscribing possession with intent to distribute a controlled

substance, D.C. Code § 48-904.01(a), is a “divisible” statute

under    Descamps        v.    United      States,          133     S.    Ct.    2276      (2013).

Applying     the     modified        categorical             approach,          we   find    that

Carcamo’s conviction constitutes an aggravated felony under the

INA.     Because Carcamo is an aggravated felon, the BIA correctly

concluded that he was removable and ineligible for cancellation

of removal, asylum, and withholding of removal.                                  Additionally,

we lack jurisdiction to review the BIA’s denial of Carcamo’s

petition for deferral of removal under the Convention Against

Torture    (CAT)     because        we   may         not    review       the    BIA’s      factual

conclusions.        Accordingly, the petition for review is denied in

part and dismissed in part for lack of jurisdiction.

                                             I.

        Carcamo,    a    citizen      of    El       Salvador,           entered     the    United

States     unlawfully          in   1987,    and           became    a     lawful     permanent

resident in 2001.             Carcamo was arrested in Washington, D.C., in

2010, and pled guilty to attempted possession with intent to

                                                 3
distribute a controlled substance, in violation of D.C. Code

§§ 48-904.09        and     48-904.01(a). 1                The    Superior     Court   of     the

District      of     Columbia         sentenced           Carcamo     to    nine    months     of

incarceration         and    three       years            of     supervised    release,       but

suspended the execution of the sentence.

       In 2013, the United States Department of Homeland Security

served Carcamo with a notice to appear, alleging that he was

removable pursuant to two separate provisions of Section 237 of

the    INA.        First,    the      notice      to      appear     charged    that    he    was

removable as an “alien who at any time after admission has been

convicted     of     a    violation      of    (or         a   conspiracy     or    attempt    to

violate) any law or regulation of a State, the United States, or

a   foreign    country       relating        to       a   controlled       substance.”        INA

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

notice to appear charged that he was removable because he had

been       “convicted            of     an        aggravated            felony.”              INA

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




       1D.C. Code § 48-904.09 states that “[a]ny person who
attempts . . . to commit any offense defined in this subchapter
is punishable by imprisonment or fine or both which may not
exceed the maximum punishment prescribed for the offense” that
was the object of the attempt.       The attempted offense, in
Carcamo’s case, was D.C. Code § 48-904.01(a), which makes it
“unlawful   for  any  person  knowingly   or  intentionally  to
manufacture, distribute, or possess, with intent to manufacture
or distribute, a controlled substance.”       D.C. Code § 48-
904.01(a)(1).
                                                  4
       At his initial removal hearing, Carcamo did not contest his

removability nor seek any relief from removal.                       Accordingly, the

immigration      judge     held    that     Carcamo       was   removable.          Carcamo

subsequently filed a motion to reconsider and a request for stay

of removal, in which he asserted that he “failed to comprehend

the nature of his removal proceedings due to his illiteracy and

the    ineffective    translation          by     the    Court’s     Spanish       language

interpreter.”      A.R. 360.          On February 25, 2014, the immigration

judge granted Carcamo’s motion to reconsider and reopened his

removal proceedings.

       Carcamo’s motion to reconsider raised new legal arguments.

While     he    admitted      that    he     was      removable      under     8    U.S.C.

§ 1227(a)(2)(B)(i)         for     violating      a     state   controlled     substance

law,    Carcamo      contested        his        removability       under      8    U.S.C.

§ 1227(a)(2)(A)(iii)          as     an    aggravated       felon.      Carcamo          also

asserted his intention to pursue various forms of relief from

removal, some of which are unavailable to those who have been

convicted of an aggravated felony.                    Carcamo argued that his D.C.

statute    of    conviction         did    not     meet     the    definition       of     an

aggravated felony under the INA because it was not a categorical

match with any crime punishable as a felony under the Controlled

Substances Act (CSA).               See Moncrieffe v. Holder, 133 S. Ct.

1678, 1683–84 (2013).              Carcamo subsequently filed applications

for    cancellation      of   removal       for    certain      permanent    residents,

                                             5
asylum and withholding of removal under the INA, and deferral of

removal under the CAT.

       After       a     hearing,         the    immigration         judge       determined         that

Carcamo’s statute of conviction, D.C. Code § 48-904.01(a), was

divisible,         and    that      Carcamo         had     violated      the    portion       of   the

statute       that       constituted            a      felony       under       the     CSA.        The

immigration judge therefore held that Carcamo had been convicted

of an aggravated felony under the INA.                                The immigration judge

went    on    to       deny     Carcamo’s        various          requests      for    relief       from

removal.

       The     BIA       also       found       that       D.C.    Code     § 48-904.01(a)           was

divisible.         Applying the modified categorical approach, the BIA

held    that       Carcamo          had     committed         an     aggravated         felony      and

affirmed        the           immigration            judge’s         denial       of      Carcamo’s

applications for relief from removal.

                                                    II.

       This    Court          has    jurisdiction            to    review       final    orders      of

removal        against              “criminal              aliens”        with        respect         to

“constitutional               claims       or       questions        of     law.”         8    U.S.C.

§ 1252(a)(2)(C), (D).                  We review the BIA’s legal determinations

de novo.       Martinez v. Holder, 740 F.3d 902, 909 (4th Cir. 2014).

The    BIA    is       entitled       to    deference         for    its     interpretation          of

immigration statutes, such as the INA.                                Omargharib v. Holder,

775 F.3d 192, 196 (4th Cir. 2014).                           A precedential decision of a

                                                       6
three-member panel of the BIA receives Chevron deference, while

a decision by a single member of the BIA—like the one in this

case—is entitled to the lesser Skidmore deference.                            Martinez,

740 F.3d at 909–10; see Skidmore v. Swift & Co., 323 U.S. 134,

139–40   (1944).       However,       “where,    as    here,   the     BIA    construes

statutes    [and      state    law]    over     which    it    has    no     particular

expertise, its interpretations are not entitled to deference.”

Omargharib, 775 F.3d at 196 (alteration in original) (quoting

Karimi v. Holder, 715 F.3d 561, 566 (4th Cir. 2013)).

      Additionally, when the BIA rules on a matter within its

area of expertise, we can affirm its decision “solely [on] the

grounds invoked by the [BIA]” and may not substitute what we

consider    to   be    “a     more    adequate    or    proper       basis”    for   the

decision.    SEC v. Chenery Corp., 332 U.S. 194, 196 (1947); see

Crespin-Valladares v. Holder, 632 F.3d 117, 123 (4th Cir. 2011).

If the BIA rested its decision on improper grounds, “the proper

course, except in rare circumstances, is to remand to the agency

for   additional       investigation      or     explanation.”             Hussain    v.

Gonzales, 477 F.3d 153, 157 (4th Cir. 2007) (quoting INS v.

Ventura, 537 U.S. 12, 16 (2002)).

                                          A.

      Carcamo argues that his prior conviction under D.C. Code

§§ 48-904.09 and 48-904.01(a) does not constitute an aggravated

felony under the INA.          We disagree.

                                          7
      Although       the    government          has       the      initial     burden    of

establishing by clear and convincing evidence that a noncitizen

is   deportable,     the    burden    shifts         to    the     noncitizen    to   prove

eligibility for relief from removal.                      8 U.S.C. § 1229a(c)(3)(A),

(4)(A).    Carcamo concedes his removability pursuant to 8 U.S.C.

§ 1227(a)(2)(B)(i)         for   violating       a    state       controlled     substance

law, so he carries the burden of proving that he is entitled to

relief from removal.         See Mondragón v. Holder, 706 F.3d 535, 545

(4th Cir. 2013); Salem v. Holder, 647 F.3d 111, 115 (4th Cir.

2011).    Because Carcamo is eligible for certain forms of relief

only if he is not an aggravated felon, he must “show that [his

D.C.] conviction was not for an ‘aggravated felony’ as defined

in the INA.”         Mondragón, 706 F.3d at 545; see also 8 C.F.R.

§ 1240.8(d).

                                           1.

      “When    the    Government      alleges             that     a   state    conviction

qualifies as an ‘aggravated felony’ under the INA, we generally

employ a ‘categorical approach’ to determine whether the state

offense   is     comparable      to   an        offense          listed   in    the   INA.”

Moncrieffe, 133 S. Ct. at 1684.                   The “central feature” of the

categorical approach is its “focus on the elements, rather than

the facts, of a crime.”           Descamps, 133 S. Ct. at 2285.                   “Because

Congress predicated deportation ‘on convictions, not conduct,’

the [categorical] approach looks to the statutory definition of

                                           8
the offense of conviction, not to the particulars of an alien’s

behavior.”       Mellouli v. Lynch, 135 S. Ct. 1980, 1986 (2015)

(quoting      Alina     Das,    The     Immigration        Penalties       of    Criminal

Convictions:        Resurrecting       Categorical       Analysis     in    Immigration

Law,    86    N.Y.U.     L.     Rev.    1669,     1701     (2011)).          Under      the

categorical     approach,       we     compare     the    elements     of       the   state

statute of conviction with the “‘generic’ federal definition of

a corresponding aggravated felony.”                     Moncrieffe, 133 S. Ct. at

1684 (citation omitted).              A state statute of conviction will be

a categorical match with the generic federal offense if every

violation of the state statute would necessarily be a violation

of the generic crime.           See id.

       If the state statute of conviction is not a categorical

match    to    the     generic       offense      and     the    state      statute      is

“divisible,”        courts     may    use   a    tool    known   as    the      “modified

categorical approach” to determine if the elements of the crime

that formed the basis of the noncitizen’s conviction align with

the generic federal offense.                Descamps, 133 S. Ct. at 2283–84.

A   statute    is     divisible      when   it    “lists    multiple,       alternative

elements, and so effectively creates ‘several different . . .

crimes.’”      Id. at 2285 (quoting Nijhawan v. Holder, 557 U.S. 29,

41 (2009)); see Moncrieffe, 133 S. Ct. at 1684 (noting that the

modified categorical approach applies when a statute “contain[s]

several different crimes, each described separately”).                                If a

                                            9
statute is divisible, the modified categorical approach allows

courts to “examine a limited class of documents to determine

which of a statute’s alternative elements formed the basis of

the    defendant’s       prior    conviction.”            Descamps,        133     S.   Ct.   at

2284.         This   limited      class    of    documents              includes    “charging

documents,       plea     agreements,      transcripts             of    plea     colloquies,

findings of fact and conclusions of law from a bench trial, and

jury instructions and verdict forms,” Johnson v. United States,

559 U.S. 133, 144 (2010), as well as other “comparable judicial

record[s],” Shepard v. United States, 544 U.S. 13, 26 (2005).

                                           2.

       We    begin   by    considering      whether          the    D.C.     statute     under

which      Carcamo   was    convicted      is    a    categorical          match    with      any

aggravated felony under the INA. 2               The INA provides an enumerated

list    of    offenses     that   constitute         an   “aggravated           felony.”       8

U.S.C.       § 1101(a)(43).        In     this       case,    the        notice    to   appear

       2
       The government argues that it is unnecessary for the Court
to apply the categorical or modified categorical approaches
because Carcamo’s previous counsel admitted that the offense
involved cocaine in his initial removal hearing—prior to Carcamo
filing, and the immigration judge granting, the motion to
reconsider. However, the government did not raise this argument
before the immigration judge or the BIA, and neither tribunal
bound Carcamo to these early admissions. We too decline to hold
Carcamo to the admissions made prior to the immigration judge’s
decision to grant the motion to reconsider.     See United States
v. Foreman, 369 F.3d 776, 784 n.8 (4th Cir. 2004); see also INS
v. Aguirre-Aguirre, 526 U.S. 415, 432 (1999) (declining to
address an argument “at this late stage” when the respondent
“failed to raise it before either the BIA or the Court of
Appeals”).
                                           10
alleged that Carcamo committed two of these offenses: first,

“illicit        trafficking        in       a        controlled            substance,”          id.

§ 1101(a)(43)(B), and second, “an attempt . . . to commit” any

other enumerated offense, id. § 1101(a)(43)(U).                                  Carcamo does

not contest the fact that under both D.C. law and the INA an

attempt    to     commit     an    offense           is    treated      the      same    as    the

completion      of   the    offense.        See           id.;   D.C.   Code      § 48-904.09.

Thus, the parties agree that the key question for our analysis

is whether Carcamo’s attempted offense, the violation of D.C.

Code § 48-904.01(a) (“D.C. statute”), aligns categorically with

the      INA      aggravated        felony            enumerated            in      8     U.S.C.

§ 1101(a)(43)(B).

      Under      Section 1101(a)(43)(B),                  “illicit      trafficking        in    a

controlled substance (as defined in section 802 of Title 21),

including a drug trafficking crime (as defined in section 924(c)

of Title 18)” is an aggravated felony.                              Section 924(c)(2) of

Title 18 further defines “drug trafficking crime” to mean, in

relevant       part,      “any    felony         punishable          under        the    [CSA].”

Finally,       “felony”    is     defined       as    any        offense    for    which       “the

maximum    term      of    imprisonment         authorized”          is     “more       than   one

year.”     18 U.S.C. § 3559(a)(1)–(5).                     In summary, “a noncitizen’s

conviction of an offense that the [CSA] makes punishable by more

than one year’s imprisonment will be counted as an ‘aggravated



                                                11
felony’ for immigration purposes.”                  Moncrieffe, 133 S. Ct. at

1683.

      The    D.C.    statute    makes        it     “unlawful      for    any    person

knowingly     or     intentionally      to        manufacture,       distribute,        or

possess, with intent to manufacture or distribute, a controlled

substance” as defined by D.C. law.                 D.C. Code § 48-904.01(a)(1).

The   government     argues    that    this       statute     is   comparable      to    a

violation of 21 U.S.C. § 841(a)(1), a CSA provision that makes

it “unlawful for any person knowingly or intentionally . . . to

manufacture, distribute, or dispense, or possess with intent to

manufacture, distribute, or dispense, a controlled substance” as

defined by federal law.

      As the government concedes, it is possible for someone to

violate the D.C. statute without committing a felony under 21

U.S.C.      § 841(a)(1).        That     is        because     the      D.C.     statute

criminalizes behavior that would fall into the CSA’s misdemeanor

exception for a drug offense that involves “a small amount of

marihuana for no remuneration.”              21 U.S.C. § 841(b)(4); see D.C.

Code § 48-904.01(a); id. § 48-902.08(a)(6) (listing “[c]annabis”

as    a   Schedule     III    controlled          substance     under     D.C.    law).

Therefore, employing the categorical approach, a violation of

the D.C. statute is not necessarily an aggravated felony. 3


      3 The     Supreme Court         reached a         similar conclusion in
Moncrieffe,      holding that         a   Georgia        statute criminalizing
                                        12
                                       3.

       Although all violations of the D.C. statute would not be

punished categorically as a felony under the CSA, the government

argues that the statute is divisible, and thus subject to the

modified categorical approach.            The term “controlled substance,”

as    used   in   the   D.C.   statute,     “means       a    drug,    substance,    or

immediate precursor, as set forth in Schedules I through V.”

D.C.   Code   § 48-901.02(4).         Schedules      I       through   V   contain   an

enumerated list of the controlled substances under D.C. law.

Id.    §§ 48-902.04,     48-902.06,    48-902.08,            48-902.10,    48-902.12.

The government argues that the D.C. statute is divisible because

each controlled substance is an alternative element that must be

proven in order to convict someone under the statute.                         For the

purposes of this case, we agree.

       As explained above, a statute is divisible if it contains

“multiple, alternative elements.”            Descamps, 133 S. Ct. at 2285.

An element of the crime is not simply “a particular set of

facts” through which the crime may be committed.                        Id. at 2291.

Instead, it is a part of the crime that the jury must find

“unanimously and beyond a reasonable doubt.”                   Id. at 2290.




possession of marijuana with intent to distribute was not
categorically a felony under the CSA because some violations of
the statute would fall into the misdemeanor exception of 21
U.S.C. § 841(b)(4). 133 S. Ct. at 1686–87.
                                       13
     To determine whether the D.C. statute contains alternative

elements, we first “examine the relevant statutory language and

interpretations of that language by the state’s highest court.”

United States v. Mungro, 754 F.3d 267, 269 (4th Cir. 2014).

Additionally, “we consider how [D.C.] courts generally instruct

juries with respect to that offense.”              United States v. Royal,

731 F.3d 333, 341 (4th Cir. 2013); see also Omargharib, 775 F.3d

at 199.

     The    term    “controlled     substance,”    as    used    in   the    D.C.

statute, refers to an exhaustive list of controlled substances

contained     in    the   D.C.    drug    schedules.      D.C.    Code      § 48-

904.01(a)(1); see id. §§ 48-901.02(4), 48-902.04, 48-902.06, 48-

902.08, 48-902.10, 48-902.12.            The schedules serve as a list of

alternative        elements,     similar      to   the    Supreme        Court’s

illustrative example in Descamps of a divisible statute, which

contained an exhaustive list of “eight specified weapons.”                   See

133 S. Ct. at 2289–90.           Therefore, the text indicates that the

D.C. statute is divisible.

     Here, the list of alternative elements—i.e., the list of

controlled substances—is not found in the statute of conviction,

but is incorporated into the D.C. statute by reference to other

statutory provisions.          However, this does not preclude a finding

of divisibility.       This Court has previously applied the modified

categorical approach to a list of alternative elements found in

                                         14
an outside statute.             United States v. McLeod, 808 F.3d 972, 977

(4th Cir. 2015). 4         Additionally, several circuit courts have held

that       state    statutes     relating        to    controlled     substances       are

divisible, even when the list of controlled substances is found

in   the     state’s      drug    schedules       and      not   in   the    statute    of

conviction.         See, e.g., United States v. Gomez-Alvarez, 781 F.3d

787, 792, 796 (5th Cir. 2015); Coronado v. Holder, 759 F.3d 977,

984–85 (9th Cir. 2014), cert. denied, 135 S. Ct. 1492 (2015);

Ruiz-Giel v. Holder, 576 F. App’x 738, 743–44 (10th Cir. 2014).

       The interpretations of the highest court of the District of

Columbia further suggest that the identity of the controlled

substance is an element of the D.C. statute.                           In Callaham v.

United       States,      the    D.C.   Court         of   Appeals    held    that     the

government         must   “prove    beyond       a    reasonable      doubt    that    the

substance was cocaine” in order to convict someone of violating

D.C. Code § 48-904.01(a) with regard to cocaine.                        937 A.2d 141,

147 (D.C. 2007).            Finding that a chemist’s report identifying


       4
       The majority of circuit courts to consider such outside
references have reached the same conclusion. See, e.g., United
States v. Mathis, 786 F.3d 1068, 1074–75, 1075 n.7 (8th Cir.
2015), cert. granted, 136 S. Ct. 894 (2016); United States v.
Trent, 767 F.3d 1046, 1055–57 (10th Cir. 2014), cert. denied,
135 S. Ct. 1447 (2015); United States v. Herrera–Alvarez, 753
F.3d 132, 139–40 (5th Cir. 2014); United States v. Hockenberry,
730 F.3d 645, 669 (6th Cir. 2013).     But see United States v.
Simmons, 782 F.3d 510, 517 (9th Cir. 2015) (declining to look to
an outside statute defining a term in the statute of conviction
because it did not contain alternative “elements” of the crime
in question).
                                            15
the substance as cocaine was improperly admitted, and that the

error     was     not       harmless,         the     Callaham      court     reversed        the

defendant’s conviction.                 Id.; see also Fields v. United States,

952     A.2d     859,       864–66       (D.C.       2008)    (similarly          reversing     a

conviction because the admission of a report identifying the

substance was in error and “the government would . . . have to

prove    that        the    substance         was     marijuana      in    order     to    prove

appellant’s attempted possession”).

       Moreover, the D.C. Court of Appeals has stated that if a

defendant       is     found     in    possession       of    two    different       types     of

controlled       substances,            “the        possession      of     each     prohibited

substance [is] a separate offense.”                          Plummer v. United States,

43    A.3d     260,     273–74        (D.C.    2012)     (quoting         Corbin    v.    United

States, 481 A.2d 1301, 1302 (D.C. 1984) (per curiam)).                                    On the

other hand, “a defendant cannot be convicted of two counts of

possession of a controlled substance with intent to distribute

it when two quantities of the [same] controlled substance are

found in the same place at the same time” because the two counts

merge into a single violation of D.C. Code § 48-904.01(a).                                    Id.

at 273 (alteration in original) (quoting Allen v. United States,

580   A.2d      653,       658   (D.C.    1990));       see   also       Briscoe    v.    United

States, 528 A.2d 1243, 1245–46 (D.C. 1987) (per curiam).                                    This

demonstrates that the D.C. statute encompasses different crimes

based on the type of controlled substance.

                                                 16
      Finally, D.C.’s model jury instruction for a violation of

the D.C. statute confirms that the identity of the controlled

substance     is     an       element      of     the       crime.           The    model      jury

instruction states that “the elements of possession with intent

to    distribute         a    controlled         substance,           each    of      which    the

government        must       prove      beyond       a     reasonable         doubt,      are”—in

relevant     part—“[Name           of    defendant]         possessed        [a    [measurable]

[detectable] amount of a controlled substance] [more than one

ounce   of    marijuana].”               Criminal         Jury       Instructions        for   the

District     of    Columbia        6.201    (5th         ed.   rev.    2015)       (brackets      in

original).        The instruction further provides that “[i]n order to

decide whether the material was [name of controlled substance],

you   may    consider        all     evidence        that      may    help    you,       including

exhibits,     expert,         and       non-expert         testimony.”             Id.     (second

brackets     in     original).             These          model      instructions         clearly

indicate that the jury must find beyond a reasonable doubt which

controlled substance was involved in a violation of the D.C.

statute in order to sustain a conviction.                              See Rose v. United

States, 49 A.3d 1252, 1255, 1258 (D.C. 2012) (finding no plain

error   in   a    jury       instruction        that      stated,      in    an    unchallenged

portion,     that    the      government        was      required       to    prove      beyond   a

reasonable doubt that the defendants “possessed phencyclidine”).




                                                17
      In sum, the statutory text, authoritative pronouncements of

the D.C. courts, and the model jury instructions all support the

conclusion that D.C. Code § 48-904.01(a) is divisible.

                                           4.

      Because the D.C. statute is divisible, the BIA correctly

applied the modified categorical approach and looked to reliable

court documents to determine which controlled substance was an

element of Carcamo’s offense.               Descamps, 133 S. Ct. at 2284.

The   administrative        record    in        this   case    contains          Carcamo’s

judgment    of   conviction     issued      by     the   Superior      Court       of    the

District of Columbia.          A judgment of conviction is a reliable

judicial    record    that   courts    may        consult     in    implementing         the

modified categorical approach.              See United States v. Allen, 446

F.3d 522, 532, 532 n.14 (4th Cir. 2006).

      Carcamo’s judgment of conviction states that he pled guilty

to    attempted       possession      with        intent       to     distribute          “a

[c]ontrolled      [s]ubstance      (Cocaine).”           A.R.       397.         Thus,    we

consider whether a violation of the D.C. statute involving the

alternative element cocaine is a categorical match with a crime

punishable as a felony under the generic federal statute.                                Any

violation of 21 U.S.C. § 841 involving cocaine is a felony under

the   CSA   because    the   maximum       punishment       exceeds        one    year    of

imprisonment.          21    U.S.C.      §§ 812(c),           841(b)(1)(A)(ii)(II),

(b)(1)(B)(ii)(II),       (b)(1)(C).             Therefore,     the     BIA       correctly

                                           18
concluded that Carcamo was convicted of an aggravated felony

under the INA pursuant to the modified categorical approach. 5

                                          B.

      Finally,      we   consider       whether        Carcamo—as     an       aggravated

felon—is eligible for any of his requested forms of relief from

removal,    including:        (1)    cancellation       of    removal      for     certain

permanent residents pursuant to 8 U.S.C. § 1229b(a); (2) asylum

pursuant to 8 U.S.C. § 1158; (3) withholding of removal pursuant

to 8 U.S.C. § 1231(b)(3); and (4) deferral of removal pursuant

to   the    implementing            regulations        of    the    CAT,       8    C.F.R.

§§ 208.16(c), (d), 208.17(a).

      The statutory provisions for both asylum and cancellation

of   removal   expressly       disqualify        any    noncitizen      who      has   been

convicted      of        an         aggravated         felony.             8       U.S.C.

§§ 1158(b)(2)(A)(ii), (b)(2)(B)(i), 1229b(a)(3).                      Thus, the BIA

correctly concluded that Carcamo is ineligible for the first two

forms of relief he requests.




      5We also find meritless Carcamo’s alternative argument that
the D.C. statute includes “social sharing” in its definition of
“distribution,”   whereas   the   CSA  requires   some    type   of
“commercial dealing.”   Petitioner’s Br. at 12–13.     Contrary to
Carcamo’s assertion, social sharing may be punishable as a
felony under the CSA. See United States v. Washington, 41 F.3d
917,   919  (4th   Cir.   1994)  (“Sharing  drugs   with    another
constitutes ‘distribution’ under § 841(a)(1)” even if no sale or
commercial scheme is involved.); see also 21 U.S.C. § 802(8),
(11) (defining “distribute” as the “transfer of a controlled
substance,” with no requirement for payment).
                                          19
       Withholding of removal under the INA is unavailable to any

noncitizen who has been convicted of “a particularly serious

crime.”       Id. § 1231(b)(3)(B)(ii); 8 C.F.R. § 208.16(d)(2).              A

noncitizen who has been convicted of an aggravated felony and

sentenced to a term of at least five years “shall be considered

to    have   committed       a   particularly   serious   crime.”   8   U.S.C.

§ 1231(b)(3)(B).         If a noncitizen was convicted of an aggravated

felony but sentenced to less than five years of imprisonment,

“it shall be presumed” that the noncitizen “has been convicted

of a particularly serious crime,” although that presumption is

rebuttable.      8 C.F.R. § 208.16(d)(3).

       Carcamo was convicted of an aggravated felony and sentenced

to    less   than     five   years   of   imprisonment.    Therefore,   he   is

presumed to have been convicted of a particularly serious crime.

Id.    Carcamo has raised no argument before the BIA or this Court

to rebut this presumption. 6          Accordingly, we find no error in the

BIA’s determination that Carcamo is ineligible for withholding

of removal.

       Finally, Carcamo seeks deferral of removal under the CAT.

See    8     C.F.R.     §§ 208.16(c),      (d),   208.17(a),    208.18(b)(1).

However, because Carcamo is a “criminal alien[]” under the INA,

this Court lacks jurisdiction to review the factual conclusions

       6
       Carcamo’s only argument for why he was not convicted of a
particularly serious crime is that his conviction was not an
aggravated felony, an argument we have rejected.
                                          20
reached by the immigration judge or the BIA in a final order of

removal.        8 U.S.C. § 1252(a)(2)(C), (D).                        Our jurisdiction in

this case is limited to the review of “constitutional claims or

questions of law.”           Id. § 1252(a)(2)(D).

      Carcamo’s only challenge to the denial of relief under the

CAT is that the immigration judge and the BIA “clearly erred in

finding that Mr. Carcamo did not meet his burden of proof in

establishing that it is more likely than not that he would be

tortured    by    the      government    or        their    acquiescence           or   willful

blindness.”       Petitioner’s Br. at 27.                   This factual argument is

not cognizable in this Court.                  See Hernandez-Nolasco v. Lynch,

807 F.3d 95, 99 (4th Cir. 2015); Saintha v. Mukasey, 516 F.3d

243, 248–51 (4th Cir. 2008).                  Carcamo’s petition for review of

the denial of his request for deferral of removal under the CAT

is therefore dismissed.

                                             III.

      In conclusion, D.C. Code § 48-904.01(a) is divisible, and

the   modified        categorical      approach           thus    applies.          Carcamo’s

record     of    conviction         indicates        that        he    was   convicted       of

attempted possession with intent to distribute cocaine.                                 Because

any   violation         of    the     D.C.     statute           involving     cocaine      is

punishable       as    a     felony   under         the    CSA,       the    BIA    correctly

determined that Carcamo was convicted of an aggravated felony

under the INA.          In light of his status as an aggravated felon,

                                              21
we deny Carcamo’s petition for review as it relates to the BIA’s

denial of his applications for cancellation of removal, asylum,

and withholding of removal, and dismiss his petition for review

for lack of jurisdiction as it pertains to deferral of removal

under the CAT.

                              PETITION FOR REVIEW DENIED IN PART
                                           AND DISMISSED IN PART




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