Amjad Pervez v. Eric Holder, Jr., No. 12-2417 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-2417 AMJAD PERVEZ, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent. No. 12-2567 AMJAD PERVEZ, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent. No. 13-1448 AMJAD PERVEZ, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent. On Petitions for Review of Orders of the Board of Immigration Appeals. Submitted: October 29, 2013 Decided: November 7, 2013 Before WILKINSON, MOTZ, and KING, Circuit Judges. Petitions denied by unpublished per curiam opinion. David C. Drake, CARLINER & REMES, P.C., Washington, D.C., for Petitioner. Stuart F. Delery, Assistant Attorney General, Carl H. McIntyre, Jr., Assistant Director, Christina J. Martin, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Amjad petitions Pervez, for review Appeals ( Board ) judge s order, a of native orders dismissing denying who permanent resident, convicted of Nationality felony of an Act aggravated which he of Immigration from the immigration for reconsideration United States removable felony. for See convicted was as a and lawful having been Immigration § 237(a)(2)(A)(iii). was Pakistan, Board appeal the found ( INA ) of We deny the petitions for review. entered was citizen the motion denying his motion to reopen. Pervez, of his his and The and aggravated attempted indecent liberties with a child, in violation of Va. Code Ann. § 18.2370, an offense relating the child sexual abuse. See INA § 101(a)(43)(A). Under 8 U.S.C. § 1252(a)(2)(C) (2012), we lack jurisdiction, except as provided in 8 U.S.C. § 1252(a)(2)(D), to review certain Under review the final order enumerated crimes, § 1252(a)(2)(C), factual of removal of including this determinations an alien an aggravated court retains that trigger convicted felony. jurisdiction the of to jurisdiction- stripping provision, such as whether [Pervez] [i]s an alien and whether []he has been convicted of an aggravated felony. Ramtulla v. Ashcroft, 301 F.3d 202, 203 (4th Cir. 2002). 3 If we are able to confirm these two factual determinations, then, under 8 U.S.C. § 1252(a)(2)(C), (D), the court can only consider constitutional claims or questions of law. See Mbea v. Gonzales, 482 F.3d 276, 278 n.1 (4th Cir. 2007). Pervez concedes that he is an alien convicted of an aggravated felony. Thus, we have jurisdiction only to consider constitutional claims and questions of law. This limitation to our jurisdiction covers the Board s order of removal dismissing the appeal from the immigration judge s order as well as the Board s orders denying reconsideration and reopening. See Larngar v. Holder, 562 F.3d 71, 75 (1st Cir. 2009); MartinezMaldonado v. Gonzales, 437 F.3d 679, 683 (7th Cir. 2006); Sarmadi v. INS, 121 F.3d 1319, 1321-22 (9th Cir. 1997) ( where Congress explicitly withdraws our jurisdiction to review a final order of reconsider deportation, or to our reopen authority deportation to review proceedings motions to is thereby by filing likewise withdrawn ). Pervez sought relief from removal applications for asylum, withholding of removal and deferral of removal under the Convention Against Torture ( CAT ), claiming that as an Ahmadiyya Muslim, he will be persecuted in Pakistan. Under 8 U.S.C. § 1158(b)(2)(A)(ii) (2012), an alien convicted of a particularly serious crime is not eligible for asylum. 4 An aggravated felony conviction is a per se particularly serious crime for asylum purposes. See 8 U.S.C. § 1158(b)(2)(B)(i). Thus, because Pervez was convicted of an aggravated felony, the immigration judge correctly found he was not eligible for asylum. Under alien 8 convicted eligible for U.S.C. of a § 1231(b)(3)(B)(ii), particularly withholding from serious (iv) crime removal. (2012), is For also an not withholding purposes, a particularly serious crime is an aggravated felony for which the aggregate sentence is at least five years. However, the Attorney General is not precluded from determining that notwithstanding the sentence, an alien has been convicted of a particularly serious crime for withholding purposes. In this instance, Pervez s sentence was one day short of five years and thus, his conviction was not a per se particularly serious crime for withholding of removal purposes. Nevertheless, the immigration judge reviewed the indictment, the conviction regarding and his sentencing criminal records conduct particularly serious crime. Dec. 336, 342 (B.I.A. 2007). and and Pervez determined that testimony it was a See Matter of N-A-M-, 24 I. & N. We conclude that the immigration judge and the Board engaged in a case-specific analysis and did not err as a matter of law to reach the finding that Pervez s 5 conviction was for a particularly serious crime. While no child was actually harmed or even involved as a potential victim, a particularly serious potentially violent. 662 (B.I.A. crime does not have to be violent or See Matter of R-A-M, 25 I. & N. Dec. 657, 2012). In this instance, the Board and the immigration judge considered the nature of the conviction, the underlying facts, and the type of sentence imposed. Holder, 595 F.3d 549, 557 (4th Cir. 2010). legal error in the conclusion that Gao v. Thus, we find no Pervez is statutorily ineligible for withholding of removal. In order to be granted deferral of removal under the CAT, Pervez must show that it is more likely than not that he will be tortured if he § 1208.16(c)(2)(2013). is removed to Pakistan. 8 C.F.R. To state a prima facie case for relief under the CAT, Pervez must show that it is more likely than not that he will be subject to severe pain or suffering, whether physical or mental . . . by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. 8 C.F.R. § 1208.18(a)(1) (2013); see Saintha v. Mukasey, 516 F.3d 243, 246 & n.2 (4th Cir. 2008). He does not need to prove that the torture would be inflicted on account of a protected ground. 495 F.3d 113, 116 (4th Cir. 2007). 6 Dankam v. Gonzales, While we generally review a denial of relief under the CAT for substantial evidence, because Pervez is removable for having been convicted of an aggravated felony, we can only review constitutional claims and questions of law. See Mbea, 482 F.3d at 278. Pervez contends that the Board erred as a matter of law denying his motion to reconsider in which he argued that the Board erred by not considering his claimed that he faced torture in Pakistan because he will be a criminal deportee. there was failure no to error consider of law the on the Board s consequences of We conclude part because being a the criminal deportee as it dismissed Pervez s appeal was because Pervez did not raise the issue on appeal. See 8 C.F.R. § 1003.3(b) (2013) (alien must identify the reasons for the appeal). We further conclude that the Board did not otherwise err as a matter of law when it denied Pervez s motion to reconsider. Insofar judge erred by as not Pervez argues considering the here that the immigration consequences of Pervez s status as a criminal deportee if he is removed to Pakistan, we note that Pervez s failure to exhaust the issue deprives us of jurisdiction to review the issue. on appeal See 8 U.S.C. § 1252(d)(1) (2012); Massis v. Mukasey, 549 F.3d 631, 638 40 (4th Cir. 2008) (alien s failure to dispute an issue on appeal 7 to the Board constitutes a failure to exhaust administrative remedies barring judicial review). We note that when the Board addressed the issue of the potential consequences of Pervez s criminal deportee status when it denied Pervez s motion to reopen, it was only doing so in order to determine if Pervez was prejudiced by counsel s failure to raise this issue during his merits hearing. Pervez s claim that the Board was implicitly acknowledging that it should have reviewed the issue in the order dismissing his appeal is not supported by conclude that the record. the Board We did have not reviewed err as a the record matter of and law by finding that Pervez was not prejudiced by counsel s failure to argue that it was more likely than not that he will be detained and tortured because he is a criminal deportee. The Board considered the affidavits filed in support of Pervez s motion, all of which came from persons living in the United States, and correctly gained concluded personal that knowledge the affiants that Pervez did not will be criminal deportee upon his arrival in Pakistan. show how detained they as a We note that the affiants claims that Pervez will inevitably be detained and arrested upon his arrival in Pakistan is not supported by the objective evidence in the record. We further note that the Board did not err as a matter of law when it considered Shahid 8 Malik s statement. Contrary to Pervez s assertion, the Board did not simply ignore the statement. It did presume that the statement was submitted by an officer within an organization serving the Ahmadi community in the United States. Pervez also contends that he was denied due process. In order to establish a due process violation during removal proceedings, Pervez must show (1) that a defect in the proceeding rendered it fundamentally unfair and (2) that the defect prejudiced the outcome of the case. 535 F.3d 243, 256 (4th Cir. 2008). Anim v. Mukasey, Prejudice is shown if the defect was likely to impact the results of the proceedings. Id. (internal quotation marks omitted). We conclude that Pervez failed to show that the denial of his motion to reopen was a due process violation. Insofar as Pervez argues that the immigration judge denied him due process by failing to allow him to develop his claim under the CAT, we note that Pervez did not raise this issue on appeal to the Board. See Tall v. Mukasey, 517 F.3d 1115, 1120 (9th Cir. 2008) (opining that petitioner s particular due process claim required administrative exhaustion because the [Board] could have provided a remedy if his complaints were found to be valid ); Sharashidze v. Gonzales, 480 F.3d 566, 570 (7th Cir. 2007) ( Although petitioners generally do not have to 9 exhaust due process claims administratively, they must raise such claims below when alleging procedural errors correctable by the [Board]. ). claim. We are thus without jurisdiction to review the See 8 U.S.C. § 1252(d)(1); Massis, 549 F.3d at 638 40. Accordingly, we deny the petitions for review. dispense with contentions are oral argument adequately because presented in the the facts We and legal materials before this court and argument would not aid the decisional process. PETITIONS DENIED 10