NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 29 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT LORANS KHALED QERYAQOS, AKA No. 18-72515 Lorance Kahlid Q. Asman, AKA Lorans Khaled Qe Asman, AKA Lorans Queryaqos, Agency No. A212-520-323 Petitioner, MEMORANDUM* v. MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted March 6, 2023 Las Vegas, Nevada Before: CLIFTON, BYBEE, and BENNETT, Circuit Judges. Partial Dissent by Judge BENNETT. Petitioner Lorans Qeryaqos is a native and citizen of Iraq. In 2015, he became a lawful permanent resident, retroactive to his 2013 date of entry into the United States. He petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his application for withholding of removal and protection * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. under the Convention Against Torture (“CAT”) and leaving in place a final order of removal. We deny the petition. Under 8 U.S.C. § 1252(a)(2)(C), “no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a” covered criminal offense. Petitioner’s Arizona felony conviction for attempted possession of a narcotic drug (heroin) for sale in violation of A.R.S. § 13-3408(A)(2) is one such offense. See 8 U.S.C. § 1227(a)(2)(B)(i); Romero- Millan v. Garland, 46 F.4th 1032, 1043 (9th Cir. 2022) (holding A.R.S. § 13-3408 divisible as to drug type); see also 21 U.S.C. § 812 (criminalizing heroin). Accordingly, we retain jurisdiction over Petitioner’s withholding of removal argument only to the extent that it involves “application of a legal standard to undisputed or established facts.” Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1067 (2020). This includes mixed questions of law and fact. Pechenkov v. Holder, 705 F.3d 444, 448 (9th Cir. 2012) (citation omitted). The BIA did not abuse its discretion in concluding that Petitioner is ineligible for withholding of removal because his conviction was for a “particularly serious crime,” under 8 U.S.C. § 1231(b)(3)(B)(ii).1 The Attorney General may 1 To the extent this argument is a mixed question of law and fact, and therefore within our jurisdiction, “determining whether a crime is particularly serious is an inherently discretionary decision, and we will review such decisions for abuse of discretion.” Arbid v. Holder, 700 F.3d 379, 383 (9th Cir. 2012). 2 “designate offenses as particularly serious crimes through case-by-case adjudication.” Delgado v. Holder, 648 F.3d 1095, 1098 (9th Cir. 2011) (en banc).2 Drug trafficking crimes are presumed particularly serious unless certain “extraordinary and compelling circumstances” exist. Matter of Y- L-, 23 I. & N. Dec. 270, 276 (A.G. 2002).3 Petitioner has not shown “extraordinary and compelling circumstances” that would justify a conclusion that his drug trafficking felony is not a particularly serious crime for immigration purposes. We have jurisdiction to review Petitioner’s CAT claim, Nasrallah v. Barr, 140 S. Ct. 1683, 1687, …
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