Anthony Luambano v. Eric Holder, Jr.

Filing

OPINION filed : The petition for review is DENIED in part and DISMISSED in part, decision not for publication. Gilbert S. Merritt, Circuit Judge; Deborah L. Cook, Circuit Judge and Bernice Bouie Donald, Circuit Judge, Authoring.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0346n.06
Case No. 13-3881

FILED

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

ANTHONY ROMANUS LUAMBANO,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.

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Apr 30, 2014
DEBORAH S. HUNT, Clerk

ON PETITION FOR REVIEW
FROM THE UNITED STATES
BOARD
OF
IMMIGRATION
APPEALS

OPINION

BEFORE: MERRITT, COOK, and DONALD, Circuit Judges.
BERNICE B. DONALD, Circuit Judge. Anthony Romanus Luambano (“Petitioner”)
petitions for review of the Board of Immigration Appeals (“BIA”) decision dismissing his
appeal. The BIA upheld the immigration judge’s (“IJ”) denial of Petitioner’s application for
withholding of removal under the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 11011537, as well as his application for both withholding and deferral of removal under the United
Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or
Punishment (“CAT”), Apr. 18, 1988, 108 Stat. 382, 1265 U.N.T.S. 85. For the following
reasons, we DENY the petition for review in part and DISMISS it in part.

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I.
The present appeal marks the second time that Petitioner has sought review in this Court.
See Kiegemwe v. Holder, 427 F. App’x 473 (6th Cir. 2011) (granting the petition for review and
remanding to the BIA for further proceedings on petitioners’ asylum claims). Because the facts
relevant to this appeal occurred after our prior decision, however, we will not recount the earlier
facts and procedural history here.
On January 11, 2012, following this Court’s decision in Kiegemwe to remand his case to
the BIA, Petitioner, a native and citizen of Tanzania, was convicted of delivering or
manufacturing, or possessing with intent to deliver, between five and forty-five kilograms of
marijuana in violation of Michigan Compiled Laws section 333.7401(2)(d)(ii). The parties both
argued to the BIA, albeit for different reasons, that remand to the IJ was appropriate. The BIA
remanded the case to the IJ on April 26, 2012.
On remand, the Department of Homeland Security charged that Petitioner’s drug
trafficking conviction also made him removable as an alien convicted of an aggravated felony
under 8 U.S.C. § 1227(a)(2)(A)(iii). The IJ sustained this additional charge. Because the
aggravated felony conviction precluded Petitioner from seeking asylum, he applied for
withholding of removal under the INA as well as withholding and deferral of removal under the
CAT. The IJ denied his applications on March 4, 2013, finding that Petitioner’s conviction for a
particularly serious crime under 8 U.S.C. § 1231(b)(3)(B)(ii) precluded withholding of removal
under both the INA and CAT and that Petitioner failed to meet his burden of proof for deferral of
removal under the CAT. Petitioner appealed to the BIA, and the BIA dismissed the appeal.
Petitioner then sought review in this Court.
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II.
A.
Petitioner concedes that his conviction under Michigan Compiled Laws section
333.7401(2)(d)(ii) is an aggravated felony. Consequently, 8 U.S.C. § 1252(a)(2)(C) and (D)
limit this Court’s jurisdiction. Tran v. Gonzales, 447 F.3d 937, 940 (6th Cir. 2006). Subsection
(C) “precludes courts from reviewing any ‘final order of removal against an alien who is
removable by reason of having committed a criminal offense covered in section . . .
1227(a)(2)(A)(iii) [convicted of an aggravated felony].’” Id. (alteration in original) (quoting 8
U.S.C. § 1252(a)(2)(C)). Subsection (D), however, permits us to “review . . . constitutional
claims or questions of law.” 8 U.S.C. § 1252(a)(2)(D); Tran, 447 F.3d at 940. We apply de
novo review to questions of law. Sad v. INS, 246 F.3d 811, 814 (6th Cir. 2001). Where the BIA
issues a separate written opinion, we review that decision as the final agency determination
except to the extent that the BIA adopted the IJ’s reasoning. Khalili v. Holder, 557 F.3d 429,
435 (6th Cir. 2009).
“Principles of judicial deference to an agency’s construction of a statute, however,
[further] limit the scope of our inquiry.” Sad, 246 F.3d at 814. The United States Supreme
Court held in INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25 (1999), that the principles derived
from Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984),
apply to the INA. Sad, 246 F.3d at 814. Chevron deference applies “to most if not all of the
statutory scheme created by congressional delegation to the Attorney General and the BIA to
administer and apply the immigration laws,” id., including the sections at issue here. With these
principles in mind, we proceed to review Petitioner’s sole claim that presents a question of law.
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B.
The INA provides that an alien “convicted . . . of a particularly serious crime is a danger
to the community of the United States” and therefore ineligible for withholding of removal. 8
U.S.C. § 1231(b)(3)(B)(ii).

Department of Justice regulations impose an identical bar for

withholding of removal under the CAT. 8 C.F.R. § 1208.16(d)(2).
Petitioner argues that the BIA erred when it dismissed his appeal challenging the denial
of his applications for withholding of removal under the INA and CAT on the ground that his
Michigan drug conviction constitutes a particularly serious crime. While the INA does not
define the term “particularly serious crime,” 8 U.S.C. § 1231(b)(3)(B)(iv) provides:
For purposes of clause (ii), an alien who has been convicted of an aggravated
felony (or felonies) for which the alien has been sentenced to an aggregate term of
imprisonment of at least 5 years shall be considered to have committed a
particularly serious crime. The previous sentence shall not preclude the Attorney
General from determining that, notwithstanding the length of sentence imposed,
an alien has been convicted of a particularly serious crime.
Specifically, Petitioner argues that language in § 1231(b)(3)(B)(ii) and (iv) unambiguously
requires an alien to receive a sentence of imprisonment, rather than probation, before the
Attorney General determines that the alien’s conviction is for a particularly serious crime.
The BIA adopted the IJ’s determination that Petitioner’s “drug conviction is
presumptively a particularly serious crime” based on the Attorney General’s decision in Matter
of Y-L-, 23 I. & N. Dec. 270 (A.G. 2002). The Attorney General designated aggravated felony
convictions for drug trafficking as presumptively particularly serious based on the congressional
delegation of authority found in § 1231(b)(3)(B)(iv). Id. at 273 (“With respect to aggravated
felony convictions for which a lesser sentence has been imposed, however, Congress explicitly
empowered the Attorney General to make the relevant determination.”). In order for Petitioner
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to succeed on his legal challenge, then, we must either agree that the language of
§ 1231(b)(3)(B)(ii) or (iv) unambiguously requires an alien to receive a term of imprisonment or
conclude that the Attorney General’s decision in Matter of Y-L- is based on an impermissible
construction of the statute. Chevron, 467 U.S. at 842-43.
Petitioner raises three arguments in support of his position that the unambiguous
language of § 1231(b)(3)(B)(ii) or (iv) requires an alien to receive a term of imprisonment. None
of these arguments persuades us, however, because our precedential decision in Hamama v. INS,
78 F.3d 233 (6th Cir. 1996), forecloses them. The Hamama panel reasoned:
The legislative history [of the version of § 1231(b)(3)(b)(ii) then in effect] . . .
indicates that the “particularly serious crime” concept is the codification of
federal treaty obligations under the Multilateral Protocol Relating to the Status of
Refugees, an agreement to which the United States is a party. In fact, the phrase
“having been convicted by a final judgment of a particularly serious crime,
constitutes a danger to the community” is the very language of Article 33 of the
Protocol. Unfortunately, neither the Protocol itself nor its handbook defines
“particularly serious.” We consequently conclude that Congress has expressed no
clear intent regarding the meaning of “particularly serious crime” . . . .
Id. at 239 (citations omitted). This Court thus has held that Congress expressed no clear intent
on the meaning of particularly serious crime and “explicitly direct[ed] the Attorney General to
determine whether an alien has been convicted of” such a crime. Id. We accordingly must give
“controlling weight” to Matter of Y-L- unless the Attorney General’s decision is “arbitrary,
capricious, or manifestly contrary to the statute.” Chevron, 467 U.S. at 844.
An agency determination is not arbitrary and capricious unless
the agency has relied on factors which Congress has not intended it to consider,
entirely failed to consider an important aspect of the problem, offered an
explanation for its decision that runs counter to the evidence before the agency, or
is so implausible that it could not be ascribed to a difference in view or the
product of agency expertise.

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Novatchinski v. Holder, 516 F. App’x 526, 529 (6th Cir. 2013) (quoting City of Cleveland v.
Ohio, 508 F.3d 827, 838 (6th Cir. 2007)). Matter of Y-L- is not arbitrary and capricious under
this standard. First, the Attorney General did not rely on factors that Congress did not intend
him to consider because Congress explicitly delegated to the Attorney General the discretion to
determine whether an alien’s conviction constitutes a particularly serious crime “notwithstanding
the length of sentence imposed.” 8 U.S.C. § 1231(b)(3)(B)(iv); Hamama, 78 F.3d at 239.
Second, the Attorney General considered important aspects of the problem, such as inconsistent
and illogical results flowing from the BIA’s “individualized, and often haphazard, assessment as
to the ‘seriousness’ of an alien defendant’s crime,” Matter of Y-L-, 23 I. & N. Dec. at 273, “[t]he
devastating effects of drug trafficking offenses on the health and general welfare, not to mention
national security, of” the United States, and “the possibility of the very rare case where an alien
may be able to demonstrate extraordinary and compelling circumstances that justify treating a
particular drug trafficking crime” as not particularly serious. Id. at 276. Finally, the Attorney
General offered a thorough explanation of his reasoning that is neither contrary to the evidence
nor implausible. See id. at 273-77.
In short, Matter of Y-L- is exactly the sort of agency determination to which Chevron
requires us to give controlling weight. We therefore hold that the BIA properly dismissed
Petitioner’s appeal of the denial of his applications for withholding of removal under the INA
and CAT.
C.
Petitioner also seeks review of the BIA’s dismissal of his appeal challenging the denial of
his application for deferral of removal under the CAT. He argues that “evidence in the record
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clearly establishes that [he is] more likely than not to face torture if removed to Tanzania.”
Pet’r. Br. at 8. But this claim raises a factual question, and our decisions recognize that we lack
jurisdiction to consider it under 8 U.S.C. § 1252(a)(2)(C) and (D). Tran, 447 F.3d at 943 (citing
Hamid v. Gonzales, 417 F.3d 642 (7th Cir. 2005)) (“Pursuant to § 1252(a)(2)(C) and (D), our
review of [the petitioner’s] CAT claim is limited to questions of law or constitutional issues.
Therefore, our jurisdiction is limited to the legal issues [the petitioner] presents.”); see also
Bushati v. Gonzales, 214 F. App’x 556, 559 (6th Cir. 2007) (“The issue of whether substantial
evidence supports the immigration judge’s finding that [petitioner] did not establish that he
would likely be subject to torture upon removal . . . is clearly a factual determination. As such,
the claim falls outside the jurisdictional purview of this Court and must be dismissed.”). We
therefore dismiss this portion of the petition for review.
III.
We DENY the petition for review in part and DISMISS it in part.

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