Jose Hernandez-Nolasco v. Loretta Lynch
807 F.3d 95
4th Cir.2015Background
- Petitioner Jose Hernandez-Nolasco, a Honduran national, entered the U.S. without authorization in 2009 at age 17.
- In 2012 he pled guilty in Virginia to possession with intent to distribute cocaine and received a suspended five-year sentence.
- DHS initiated removal proceedings; an asylum officer found Hernandez-Nolasco had a credible fear of persecution based on past gang violence and kidnapping and referred him to withholding-only proceedings.
- The immigration judge (IJ) held the drug conviction was a “particularly serious crime,” rendering Hernandez-Nolasco ineligible for withholding of removal under the INA and CAT; the IJ also denied CAT deferral on factual grounds.
- The Board of Immigration Appeals (BIA) adopted and affirmed the IJ’s decision and denied reconsideration; Hernandez-Nolasco petitioned this Court for review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Hernandez-Nolasco’s state conviction constitutes a “particularly serious crime” barring withholding of removal | The conviction is not "particularly serious" because it is not an aggravated felony; IJ should have received evidence of "unusual circumstances" (In re Y-L-) to rebut that designation | Conviction is for possession with intent to distribute cocaine, which necessarily qualifies as a federal drug felony and thus an aggravated felony and per se a "particularly serious crime" because sentence = 5 years | Court held the state conviction qualifies as an aggravated felony and, given the 5-year sentence, was per se a "particularly serious crime," so withholding is barred |
| Whether IJ erred by not admitting evidence of "unusual circumstances" under In re Y-L- | Y-L- factors should be considered to show exceptionality and avoid the per se finding | Y-L- exceptions apply only when sentence is less than 5 years; here sentence meets the automatic 5-year threshold so Y-L- is irrelevant | Court held Y-L- inapplicable because the aggravated-felony/sentence rule controls; no error in excluding such evidence |
| Whether Hernandez-Nolasco is entitled to deferral of removal under the CAT (factual showing of likelihood of torture and state acquiescence) | He will likely be tortured in Honduras and the government would acquiesce; IJ’s factual findings were erroneous | IJ found petitioner did not meet the evidentiary burden to show likely torture or government acquiescence | Court declined to reach merits: lacks jurisdiction to review factual questions because the conviction relates to a controlled substance; claim dismissed for lack of jurisdiction |
| Whether BIA abused discretion in denying reconsideration | Motion raised valid issues (Y-L- and factual matters) warranting reconsideration | BIA provided a rational basis in denying reconsideration because the law and facts did not change the outcome | Court found no abuse of discretion; denial of reconsideration affirmed |
Key Cases Cited
- Yanez-Marquez v. Lynch, 789 F.3d 434 (4th Cir. 2015) (standard of review for BIA decisions and when BIA adopts IJ)
- Moncrieffe v. Holder, 133 S. Ct. 1678 (Sup. Ct.) (state drug offense that necessarily matches federal felony qualifies as a federal drug trafficking crime)
- Gao v. Holder, 595 F.3d 549 (4th Cir. 2010) (aggravated-felony sentence of at least five years is per se a particularly serious crime)
- Jean v. Gonzales, 435 F.3d 475 (4th Cir. 2006) (standard for reviewing BIA denial of motions to reconsider)
- Saintha v. Mukasey, 516 F.3d 243 (4th Cir. 2008) (distinction between factual and legal questions in CAT claims and jurisdictional limits)