     17-726
     Thompson v. Whitaker
                                                                                  BIA
                                                                             Renner, IJ
                                                                          A099 113 000

                            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 18th day of December, two thousand
 5   eighteen.
 6
 7   PRESENT:
 8            DENNIS JACOBS,
 9            ROBERT D. SACK,
10            SUSAN L. CARNEY,
11                 Circuit Judges.
12   _____________________________________
13
14   ORA CLEMENTINE THOMPSON, AKA
15   ABRIANNA R. TINGLE, AKA ORA
16   THOMPSON,
17             Petitioner,
18
19                    v.                                         17-726
20                                                               NAC
21   MATTHEW G. WHITAKER, ACTING
22   UNITED STATES ATTORNEY GENERAL,
23            Respondent.
24   _____________________________________
25
26   FOR PETITIONER:                   Nicholas J. Mundy, Brooklyn, NY.
27
28   FOR RESPONDENT:                   Chad A. Readler, Acting Assistant
29                                     Attorney General; M. Jocelyn Lopez
30                                     Wright, Senior Litigation Counsel;
31                                     Anna Juarez, Trial Attorney,
32                                     Office of Immigration Litigation,
1                                    United States Department of
2                                    Justice, Washington, DC.
3
4          UPON DUE CONSIDERATION of this petition for review of a

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

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

7    is DENIED IN PART AND DISMISSED IN PART.

8          Petitioner Ora Clementine Thompson, a native and citizen

9    of Dominica, seeks review of a February 24, 2017, decision of

10   the   BIA   affirming    an   October    4,    2016,    decision       of   an

11   Immigration Judge (“IJ”) denying Thompson’s application for

12   withholding    of   removal    and   relief    under     the    Convention

13   Against Torture (“CAT”).        In re Ora Clementine Thompson, No.

14   A 099 113 000 (B.I.A. Feb. 24, 2017), aff’g No. A 099 113 000

15   (Immig. Ct. N.Y. City Oct. 4, 2016).           We assume the parties’

16   familiarity with the underlying facts and procedural history

17   in this case.

18         Because Thompson’s removal order is based on criminal

19   convictions, including an aggravated felony and controlled

20   substance     offense,    our      jurisdiction        is      limited      to

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

22   § 1252(a)(2)(C), (D).         We review any such claims de novo.

23   Pierre v. Holder, 588 F.3d 767, 772 (2d Cir. 2009).                   We have

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



                                          2
1    completeness.”         Wangchuck v. Dep’t of Homeland Sec., 448 F.3d

2    524, 528 (2d Cir. 2006).

3    Removability

4          Thompson argues that her order of removal should be

5    vacated because Harbin v. Sessions, 860 F.3d 58 (2d Cir.

6    2017), changed our analysis regarding controlled substance

7    offenses.         We     have    jurisdiction     to   review    whether   a

8    conviction is an aggravated felony, see Pierre, 588 F.3d at

9    772, but we find no error in the agency’s determination and

10   deny the petition to the extent it challenges removability.

11         Harbin held that New York Penal Law (“NYPL”) § 220.31 is

12   not a drug trafficking aggravated felony because the New York

13   definition of “controlled substance” is broader than the

14   federal definition.         860 F.3d at 68.        However, Thompson was

15   convicted    of        controlled   substance      offenses     under   NYPL

16   §§ 220.39(1) and 220.44(2), which criminalize sale of a more

17   discrete set of substances.             Thompson has not alleged that

18   any controlled substance criminalized under those statutes is

19   not   also   included       in    the   federal    controlled     substance

20   schedules.   Thompson’s convictions for NYPL §§ 220.39(1) and

21   220.44(2) are therefore aggravated felonies.               See Pascual v.

22   Holder, 707 F.3d 403, 405 (2d Cir. 2013), aff’d on reh’g, 723

23   F.3d 156 (2d Cir. 2013) (holding that a conviction for sale

24   of a controlled substance under § 220.39(1) is an aggravated
                                   3
1    felony).    Because these convictions are aggravated felonies,

2    the criminal bar applies:         8 U.S.C. § 1252(a)(2)(C).           So (as

3    discussed below) the petition is dismissed in remaining part

4    as to withholding of removal and CAT relief.

5    Withholding of Removal

6           The agency did not commit legal or constitutional error

7    in concluding that Thompson was barred from withholding of

8    removal because she was convicted of a particularly serious

9    crime.     Aliens convicted of “particularly serious crime[s]”

10   are statutorily ineligible for withholding of removal.                      8

11   U.S.C.     § 1231(b)(3)(B)(ii).             Presumptively,       aggravated

12   felony drug trafficking offenses are particularly serious.

13   In re Y-L-, 23 I. & N. Dec. 270, 274 (B.I.A. 2002), overruled

14   on other grounds by Khouzam v. Ashcroft, 361 F.3d 161, 171

15   (2d Cir. 2004).      Thompson’s convictions for NYPL §§ 220.39(1)

16   and    220.44(2)     are    aggravated       felony     drug     trafficking

17   offenses.    See Pascual, 707 F.3d at 405.

18          To overcome the presumption that her aggravated felony

19   drug    trafficking       convictions      were     particularly    serious,

20   Thompson     had     to    show   “extraordinary          and    compelling

21   circumstances”       justifying    a       “rare”    deviation     from   the

22   presumption.       In re Y-L-, 23 I. & N. Dec. at 276.           At minimum,

23   Thompson had to show that her convictions involved:


                                            4
 1       (1) a very small quantity of controlled substance;
 2       (2) a very modest amount of money paid for the drugs
 3       in the offending transaction; (3) merely peripheral
 4       involvement by the alien in the criminal activity,
 5       transaction, or conspiracy; (4) the absence of any
 6       violence or threat of violence, implicit or
 7       otherwise, associated with the offense; (5) the
 8       absence of   any   organized  crime   or   terrorist
 9       organization involvement, direct or indirect, in
10       relation to the offending activity; and (6) the
11       absence of any adverse or harmful effect of the
12       activity or transaction on juveniles.
13
14   Id. at 276–77.

15       Here,      the   agency    applied    the    factors,   acknowledged

16   Thompson’s     testimony      regarding   the    circumstances    of   her

17   convictions, and concluded that Thompson failed to overcome

18   the presumption.        Because Thompson acknowledges that the

19   agency applied the proper factors and challenges only the

20   agency’s weighing of the facts, we lack jurisdiction to

21   further consider the denial of withholding of removal.                 See

22   Nethagani v. Mukasey, 532 F.3d 150, 154-55 (2d Cir. 2008)

23   (reviewing particularly serious crime determination as to

24   whether

25   “the BIA properly applied its own precedent” but not reviewing

26   the BIA’s weighing of the factors).

27   CAT Deferral

28       An applicant for CAT deferral must “establish that it is

29   more likely than not that . . . she would be tortured if

30   removed   to   the   proposed     country   of    removal.”      8 C.F.R.
                                         5
1    §§ 1208.16(c)(2), 1208.17(a).      “Torture is defined as any act

2    by which severe pain or suffering, whether physical or mental,

3    is intentionally inflicted on a person . . . by or at the

4    instigation of or with the consent or acquiescence of a public

5    official or other person acting in an official capacity.”

6    8 C.F.R. § 1208.18(a)(1).

7         Thompson’s      convictions   constrain       our    review     to

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

9    1252(a)(2)(C), (D); Ortiz-Franco v. Holder, 782 F.3d 81, 86

10   (2d Cir. 2015).      Thompson has raised no constitutional claim

11   or question of law regarding the agency’s denial of CAT

12   protection.    Instead, Thompson argues, “this is a simple case

13   of the [agency] misapplying the facts to the law.”               While

14   legal error may occur where the agency “totally overlook[s]”

15   or   “seriously   mischaracterize[s]”   evidence,        Thompson   has

16   pointed to no evidence that the agency overlooked.               Mendez

17   v. Holder, 566 F.3d 316, 323 (2d Cir. 2009); see Ortiz-Franco,

18   782 F.3d at 91 n.2.     And the likelihood of a future event is

19   a finding of fact.      Hui Lin Huang v. Holder, 677 F.3d 130,

20   134 (2d Cir. 2012).        The IJ acknowledged that homosexual

21   conduct is criminalized in Dominica and that there have been

22   incidents in which the law had been applied to women, but

23   relied   on   more   recent   reports—the   2013    and   2015    State

24   Department Reports—that the government rarely enforced the
                                  6
1    law.    Because Thompson has pointed to no evidence that the

2    agency mischaracterized or ignored, we lack jurisdiction to

3    further review the agency’s factual finding that Thompson did

4    not demonstrate that it is more likely than not she would be

5    tortured.    See 8 U.S.C. § 1252(a)(2)(C); Hui Lin Huang, 677

6    F.3d at 134.

7           Thompson   has   raised   no    constitutional   question   or

8    question of law and challenges only the agency’s factual

9    findings and weighing of evidence.          This Court is therefore

10   without jurisdiction to further review the agency’s decision

11   denying her CAT protection.           See Ortiz-Franco, 782 F.3d at

12   86.

13          For the foregoing reasons, the petition for review is

14   DENIED IN PART AND DISMISSED IN PART.          As we have completed

15   our review, the stay of removal that the Court previously

16   granted in this petition is VACATED.         Any pending request for

17   oral argument in this petition is DENIED in accordance with

18   Federal Rule of Appellate Procedure 34(a)(2), and Second

19   Circuit Local Rule 34.1(b).

20                                    FOR THE COURT:
21                                    Catherine O’Hagan Wolfe, Clerk




                                       7
