Jose A. Carcamo v. Eric Holder, Jr.

Filing

UNPUBLISHED AUTHORED OPINION filed. Originating case number: A028-573-713. Copies to all parties and the district court/agency. [999814683]. [15-1005]

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UNPUBLISHED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unpublished opinion.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.

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Unpublished opinions are not binding precedent in this circuit.

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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.
hold

that

the

District

of

Columbia’s

criminal

We

statute

proscribing possession with intent to distribute a controlled
substance, D.C. Code § 48-904.01(a), is a “divisible” statute
under

Descamps

Applying

the

v.

United

modified

States,

133

categorical

S.

Ct.

approach,

2276
we

(2013).

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)

conclusions.

because

we

may

not

review

the

BIA’s

factual

Accordingly, the petition for review is denied in

part and dismissed in part for lack of jurisdiction.
I.
Carcamo,
States

a

citizen

unlawfully

resident in 2001.

in

of

1987,

El

Salvador,

and

became

entered
a

lawful

the

United

permanent

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

2010, and pled guilty to attempted possession with intent to
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distribute a controlled substance, in violation of D.C. Code
48-904.01(a). 1

§§ 48-904.09

and

District

Columbia

of

incarceration

and

The

sentenced

three

years

Superior

Carcamo
of

to

Court

nine

supervised

of

months

release,

the
of
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

§ 237(a)(2)(B)(i),

relating
8

U.S.C.

to

a

controlled

substance.”

§ 1227(a)(2)(B)(i).

Second,

INA
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).

1

D.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 § 48904.01(a)(1).
4

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At his initial removal hearing, Carcamo did not contest his
removability nor seek any relief from removal.
immigration

judge

held

that

Carcamo

was

Accordingly, the

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

interpreter.”

translation

A.R. 360.

by

the

Court’s

Spanish

language

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

§ 1227(a)(2)(B)(i)
law,

Carcamo

that
for

as

was

violating

contested

§ 1227(a)(2)(A)(iii)

he

his
an

removable

a

state

controlled

removability

aggravated

under

under

felon.

8

U.S.C.

substance
8

U.S.C.

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.
statute

of

conviction

did

not

Carcamo argued that his D.C.
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
5

certain

permanent

residents,

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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,
statute

and

that

that

Carcamo

constituted

had
a

violated

felony

the

under

portion
the

of

the

CSA.

The

immigration judge therefore held that Carcamo had been convicted
of an aggravated felony under the INA.
went

on

to

deny

Carcamo’s

various

The immigration judge

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

Carcamo

that

affirmed

the

had

committed

immigration

an

aggravated

judge’s

denial

felony

of

and

Carcamo’s

applications for relief from removal.
II.
This
removal

Court

has

against

“constitutional

The

BIA

“criminal

claims

§ 1252(a)(2)(C), (D).
de novo.

jurisdiction

or

to

review

aliens”

questions

final

with
of

law.”

orders

respect
8

of
to

U.S.C.

We review the BIA’s legal determinations

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

entitled

to

deference

for

immigration statutes, such as the INA.
775 F.3d 192, 196 (4th Cir. 2014).
6

its

interpretation

of

Omargharib v. Holder,

A precedential decision of a

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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).

statutes

[and

However,
state

law]

“where,

as

over

which

here,
it

the
has

BIA
no

construes
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
decision.

to

be

“a

more

adequate

or

proper

basis”

for

the

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

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government

has

the

initial

burden

of

establishing by clear and convincing evidence that a noncitizen
is

deportable,

the

burden

shifts

to

eligibility for relief from removal.
(4)(A).

the

noncitizen

to

prove

8 U.S.C. § 1229a(c)(3)(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

Moncrieffe, 133 S. Ct. at 1684.

listed

in

the

INA.”

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
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the offense of conviction, not to the particulars of an alien’s
behavior.”
(quoting

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

Convictions:
Law,

86

Das,

Immigration

Resurrecting

N.Y.U.

categorical

The

L.

Categorical

Analysis

Rev.

approach,

Penalties

1669,

1701

we

compare

the

of

in

Immigration

(2011)).
elements

Criminal

Under
of

the

the
state

statute of conviction with the “‘generic’ federal definition of
a corresponding aggravated felony.”
1684 (citation omitted).

Moncrieffe, 133 S. Ct. at

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

“divisible,”

generic

courts

may

offense
use

a

and
tool

the
known

state
as

statute

the

is

“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

it

statute

is

divisible

when

“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”).
9

If a

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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

2284.

This

documents,

prior

limited

plea

conviction.”
class

of

agreements,

Descamps,

documents

transcripts

133

S.

includes

of

plea

Ct.

at

“charging

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
which

begin

Carcamo

by

considering

was

convicted

whether
is

a

aggravated felony under the INA. 2
list

of

U.S.C.

offenses

that

§ 1101(a)(43).

constitute
In

this

2

the

D.C.

categorical

statute
match

under

with

any

The INA provides an enumerated
an

“aggravated

case,

the

felony.”

notice

to

8

appear

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”).
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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

completion

commit
of

the

an

offense

offense.

is

See

treated
id.;

the

D.C.

same

Code

as

the

§ 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
Finally,
maximum
year.”

part,
“felony”
term

of

“any

felony

is

defined

imprisonment

punishable
as

any

offense

authorized”

18 U.S.C. § 3559(a)(1)–(5).

under

is

for

the

[CSA].”

which

“more

than

“the
one

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

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felony’ for immigration purposes.”

Moncrieffe, 133 S. Ct. at

1683.
The

D.C.

knowingly

or

statute

makes

intentionally

it
to

“unlawful

for

manufacture,

any

person

distribute,

or

possess, with intent to manufacture or distribute, a controlled
substance” as defined by D.C. law.
The

government

argues

that

this

D.C. Code § 48-904.01(a)(1).
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
Moncrieffe,

Supreme Court
holding
that

reached a
a
Georgia
12

similar conclusion in
statute
criminalizing

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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.
as

used

in

the

D.C.

The term “controlled substance,”

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.
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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, 48902.08, 48-902.10, 48-902.12.
alternative

elements,

The schedules serve as a list of

similar

to

the

Supreme

Court’s

illustrative example in Descamps of a divisible statute, which
contained an exhaustive list of “eight specified weapons.”
133 S. Ct. at 2289–90.

See

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.
of divisibility.

However, this does not preclude a finding

This Court has previously applied the modified

categorical approach to a list of alternative elements found in
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an outside statute.
(4th Cir. 2015). 4
that

state

Pg: 15 of 22

United States v. McLeod, 808 F.3d 972, 977

Additionally, several circuit courts have held

statutes

relating

to

controlled

substances

are

divisible, even when the list of controlled substances is found
in

the

state’s

conviction.

drug

schedules

and

not

in

the

statute

of

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.
United

States,

government

must

the

D.C.

“prove

Court

beyond

of
a

In Callaham v.

Appeals

held

that

the

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.
147 (D.C. 2007).

937 A.2d 141,

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).
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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

(D.C.

A.2d

859,

864–66

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

controlled

found

in

substances,

possession
“the

of

possession

substance [is] a separate offense.”
43

A.3d

260,

273–74

(D.C.

two

2012)

different
of

each

types

of

prohibited

Plummer v. United States,
(quoting

Corbin

v.

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

United
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.

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

United
This

demonstrates that the D.C. statute encompasses different crimes
based on the type of controlled substance.
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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

government
relevant

a

must

controlled
prove

part—“[Name

substance,

beyond

of

a

each

reasonable

defendant]

possessed

of

which

doubt,
[a

the

are”—in

[measurable]

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

of

District

marijuana].”
of

original).

Columbia

Criminal
6.201

(5th

Jury
ed.

Instructions

rev.

2015)

for

the

(brackets

in

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

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

may

exhibits,
brackets

consider
expert,
in

all

evidence

and

original).

that

non-expert
These

may

help

you,

testimony.”
model

including

Id.

(second

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

portion,

a

jury

that

the

instruction
government

that

stated,

in

an

unchallenged

was

required

to

prove

beyond

reasonable doubt that the defendants “possessed phencyclidine”).

17

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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

this

administrative

judgment

of

record

conviction

District of Columbia.
judicial

record

that

in

issued

by

case

the

contains

Superior

Carcamo’s

Court

of

the

A judgment of conviction is a reliable
courts

may

modified categorical approach.

consult

in

implementing

the

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

[c]ontrolled

possession
[s]ubstance

with

intent

(Cocaine).”

to

A.R.

distribute
397.

Thus,

“a
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

imprisonment.
(b)(1)(B)(ii)(II),

the

maximum

punishment

exceeds

21

U.S.C.

§§ 812(c),

841(b)(1)(A)(ii)(II),

(b)(1)(C).

Therefore,
18

the

one

BIA

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of

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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

convicted

expressly
of

an

disqualify
aggravated

any

noncitizen
felony.

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

who
8

has

been

U.S.C.

Thus, the BIA

correctly concluded that Carcamo is ineligible for the first two
forms of relief he requests.

5

We 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).
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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

§ 1231(b)(3)(B).

a

particularly

serious

crime.”

8

U.S.C.

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.
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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

blindness.”

government

or

their

acquiescence

Petitioner’s Br. at 27.

not cognizable in this Court.

or

willful

This factual argument is

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

record

of

categorical

conviction

approach

indicates

thus
that

applies.
he

was

Carcamo’s

convicted

attempted possession with intent to distribute cocaine.
any

violation

punishable

as

of
a

the
felony

D.C.

statute

under

the

involving

CSA,

the

Because

cocaine

BIA

of

is

correctly

determined that Carcamo was convicted of an aggravated felony
under the INA.

In light of his status as an aggravated felon,
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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

22