Decided: December 4, 2015
The Fourth Circuit dismissed in part and denied in part.
The Fourth Circuit began by determining that the proper standard of review of BIA decisions was de novo, and that because the BIA expressly adopted the decision of the IJ, that both decisions were reviewable. The Court turns to Hernandez-Nolasco’s argument that the IJ and BIA erred in determining that he was convicted of a “particularly serious crime,” because although he was convicted of possession with intent to distribute cocaine, that offense was not “particularly serious” as defined in U.S.C. § 1231(b)(3)(B)(ii) because his conviction did qualify as an “aggravated felony.” Furthermore, Hernandez-Nolasco argued that his case qualified under the “unusual circumstances” exception and the IJ should have received evidence about the unusual circumstances. However, the Court disagreed with Hernandez-Nolasco. After tracing the definitions of “particularly serious crime,” “aggravated felony,” “drug trafficking crime,” and “unusual circumstances,” the Court determined that because the conviction of possession of cocaine with intent to distribute gave Hernandez-Nolasco a five-year sentence, that sentence rendered the crime per se a “particularly serious crime.” Therefore, because it was a “particularly serious crime,” the “unusual circumstances” exception did not apply since that exception only applies when the sentenced imposed is less than five years.
As to Hernandez-Nolasco’s argument that the IJ and the BIA were wrong in concluding that he “failed to meet his evidentiary burden to establish that he qualifies for deferral of removal under the CAT,” the Court determined that it lacked jurisdiction to take up this issue. Because the INA limited the Court’s jurisdiction solely to constitutional claims or questions of law, this argument, which turned purely on a question of fact, was outside the Court’s purview. The Fourth Circuit then dismissed in part and denied in part Hernandez-Nolasco’s petition for review.
Jennie Rischbieter