Carol Stephen v. Jefferson Sessions

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 3 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT CAROL STEPHEN, No. 15-72903 Petitioner, Agency No. A072-517-028 v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted March 13, 2018 San Francisco, California Before: WALLACE, BERZON, and CALLAHAN, Circuit Judges. Petitioner Carol Stephen (“Stephen”), who is a citizen of Iraq, petitions for review of the decision of the Board of Immigration Appeals (“BIA”) which upheld the Immigration Judge’s (“IJ”) denial of her asylum, withholding of removal, and Convention Against Torture (“CAT”) claims. We have jurisdiction under 8 U.S.C. § 1252. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Reviewing the BIA’s legal conclusions de novo, see Baballah v. Ashcroft, 367 F.3d 1067, 1073 (9th Cir. 2004), and its factual findings for substantial evidence, see Zhi v. Holder, 751 F.3d 1088, 1091 (9th Cir. 2014), we deny Stephen’s petition for review.1 1. “An applicant for asylum or for cancellation of removal is not eligible for these forms of relief if he has been convicted of an aggravated felony.” Rendon v. Mukasey, 520 F.3d 967, 973 (9th Cir. 2008). A state drug crime qualifies as an aggravated felony if it “contains a trafficking element” or would be punishable “as a felony under the federal drug laws.” Id. at 974. Stephen’s Arizona convictions were for aggravated felonies under both theories. Stephen was convicted of “attempt” under Arizona Revised Statutes (“ARS”) § 13-1001, and of “transport[ing] for sale . . . a dangerous drug,” ARS § 13-3407(A)(7). Thus, her convictions contained trafficking elements and constituted felonies under the federal drug laws. See 21 U.S.C. §§ 812, 841(a)(1), 846. Moreover, she was not convicted of solicitation, under the Supreme Court’s categorical and modified categorical approaches. See Descamps v. United States, 570 U.S. 254, 1 As the parties are familiar with the facts and procedural history, we restate them only as necessary to explain our decision. 2 257 (2013). Stephen’s conviction for aggravated felonies terminated her derivative asylee status, and made her ineligible for asylum and presumptively ineligible for withholding of removal. 2. The BIA did not abuse its discretion in determining that Stephen was convicted of a particularly serious crime rendering her ineligible for withholding of removal. A conviction involving trafficking in a controlled substance presumptively is a particularly serious crime, irrespective of the length of the sentence. 8 U.S.C. 1231(b)(3)(B)(ii); Matter of Y–L–, 23 I&N Dec. 270, 273 (AG 2002). Because Stephen’s convictions involve trafficking in methamphetamine, they presumptively are for particularly serious crimes. This presumption may be rebutted under “extraordinary and compelling circumstances,” but Stephen has not made such a showing here. Accordingly, Stephen is ineligible for withholding of removal. 3. Furthermore, the BIA determined that Stephen was ineligible for adjustment of status pursuant to § 209 of the Immigration and ...

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