Sandro Rodriguez v. Attorney General United States, No. 13-2037 (3d Cir. 2013)

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NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________ No. 13-2037 ___________ SANDRO RODRIGUEZ, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA, Respondent ____________________________________ On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A041-832-100) Immigration Judge: Honorable Mirlande Tadal ____________________________________ Submitted Pursuant to Third Circuit LAR 34.1(a) September 11, 2013 Before: SMITH, GREENAWAY, JR. and SHWARTZ , Circuit Judges (Opinion filed: September 16, 2013) ___________ OPINION ___________ PER CURIAM Sandro Rodriguez, a native and citizen of the Dominican Republic, petitions for review of the Board of Immigration Appeals ( BIA ) final order of removal. For the reasons that follow, we will deny the petition. I. Rodriguez entered the United States in 1986 and later became a lawful permanent resident. In 2003, he pleaded guilty in New Jersey state court to distribution of a controlled dangerous substance (cocaine), in violation of N.J. Stat. §§ 2C:35-5a(1) and 2C:35-5b(3). He was sentenced to 90 days imprisonment and two years probation. In light of that conviction, the Department of Homeland Security ( DHS ) initiated removal proceedings against Rodriguez, charging him with being removable for having been convicted of an aggravated felony, see 8 U.S.C. § 1227(a)(2)(A)(iii), and a controlled substance offense, see 8 U.S.C. § 1227(a)(2)(B)(i). Rodriguez conceded his removability and, after DHS denied his request for a favorable exercise of prosecutorial discretion, he applied for asylum, withholding of removal under the Immigration and Nationality Act ( INA ), and relief under the Convention Against Torture ( CAT ). In November 2012, the IJ denied Rodriguez s application. The IJ began her analysis by finding that Rodriguez s testimony was not credible, and that he had not corroborated his claim. Next, the IJ determined that Rodriguez s conviction rendered him ineligible for asylum, withholding of removal under the INA, and withholding of removal under the CAT. Finally, the IJ rejected Rodriguez s request for deferral of removal under the CAT, concluding that, even if his allegations were true, he had not established that he would likely be tortured if 2 removed to the Dominican Republic. Rodriguez appealed the IJ s decision to the BIA. In March 2013, the BIA dismissed the appeal. In doing so, the BIA adopt[ed] and affirm[ed] the Immigration Judge s determinations for the reasons stated in [her] decision, while at the same time providing brief comments for purposes of clarification. (A.R. at 3.) Rodriguez now seeks review of the agency s decision.1 II. Rodriguez s brief does not challenge the agency s determination that his conviction constitutes an aggravated felony under the INA. Nor does his brief challenge the agency s denial of his request for CAT relief. Accordingly, those issues have been waived. See Laborers Int l Union of N. Am., AFL-CIO v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d Cir. 1994). Furthermore, because an alien who is convicted of an aggravated felony is ineligible for asylum, Garcia v. Att y Gen., 462 F.3d 287, 291 (3d Cir. 2006) (citing 8 U.S.C. § 1158(b)(2)(A)(ii), (b)(2)(B)(i)), Rodriguez s waiver of the agency s aggravated felony determination forecloses relief here with respect to his asylum claim. All that is before us, then, is Rodriguez s challenge to the agency s denial of his request for withholding of removal under the INA. Individuals seeking to obtain [that relief] may not do so if they are deemed by the Attorney General to have committed a particularly serious crime. Lavira v. Att y Gen., 478 F.3d 158, 161 (3d Cir. 2007), overruled on other grounds by 1 We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1). Where, as here, the BIA s decision adopts and affirms the IJ s decision, we have authority to review both decisions. Hanif v. Att y Gen., 694 F.3d 479, 483 (3d Cir. 2012). 3 Pierre v. Att y Gen., 528 F.3d 180 (3d Cir. 2008) (en banc); see 8 U.S.C. § 1231(b)(3)(B)(ii). For the reasons set forth in the IJ s decision, (see A.R. at 281-83), which the BIA adopted, we agree with the agency s conclusion that Rodriguez s conviction constituted a particularly serious crime for purposes of his claim for withholding of removal under the INA. As a result, the agency did not err in denying that relief. In light of the above, we will deny Rodriguez s petition for review. His request for oral argument is denied. 4

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