By Elizabeth DeFrance

On December 4, 2015, the Fourth Circuit issued a published opinion in the case, Hernandez-Nolasco v. Lynch, in which the petitioner sought review of orders of the Board of Immigration Appeals (BIA).

Being Kidnapped And Threatened By A Gang After His Brother and Father Were Killed Failed to Meet The Burden of Proving He Would Face Torture If Removed

In 2009, Jose Hernandez-Nolasco, a citizen of Honduras,  entered the United States without authorization at the age of seventeen. In 2012, he pled guilty to possession of cocaine with intent to distribute, a violation of Virginia Code § 18.2-248 and was sentenced to five years. The sentence was suspended.

Sometime later, the Department of Homeland Security issued a Notice of Intent to issue a Final Administrative Removal Order for Hernandez-Nolasco. He claimed he was entitled to withholding of removal under the Immigration Nationality Act (INA) or the United Nations Convention Against Torture Act (CAT) because he would face persecution upon return to Honduras because of his membership in a particular social group. Hernandez-Nolasco’s father and brother were killed by a gang leader, and he left Honduras after being kidnapped and threatened by the same gang.

An Immigration Judge (IJ) held that Hernandez-Nolasco was not entitled to withholding of removal under the INA or CAT because he was convicted of a “particularly serious crime.” The IJ also found that Hernandez-Nolasco was not entitled to deferral of removal under the CAT because he failed to prove he would be subject to torture if returned to Honduras.

On appeal, the BIA affirmed the IJ’s decision. Hernandez-Nolasco filed a motion for reconsideration which was denied by the BIA. Hernandez then petitioned the Fourth Circuit Court of Appeals for review, claiming the BIA erred in determining his drug conviction meets the definition of an “aggravated felony,” rendering him ineligible for relief under the INA and the CAT. He also claims that the BIA erred in holding that he failed to meet his evidentiary burden to qualify for relief under the CAT.

A Drug Trafficking Crime Is Considered An Aggravated Felony

A petitioner is ineligible for relief under the INA or the CAT if he has been convicted of a particularly serious crime. A conviction for an aggravated felony with a sentence of at least five years is considered a particularly serious crime. Under the INA, a “drug trafficking crime” is considered to be an aggravated felony. Any “conviction under a state statute that proscribes conduct necessarily punishable as a felony under the Controlled Substances Act (CSA)” qualifies as a drug trafficking crime.

Hernandez-Nolasco’s Drug Trafficking Conviction Qualifies As A Particularly Serious Crime

Because Hernandez-Nolasco was convicted of a state crime that necessarily constitutes as felony under the CSA, the conviction qualifies as an aggravated felony under the INA. An aggravated felony is considered a particularly serious crime if it results in a sentence of at least five years, thus Hernandez-Nolasco is ineligible for withholding of removal under the INA or the CAT.

Under the INA, the Court’s jurisdiction for review of final orders of removal involving crimes related to controlled substances is limited to constitutional claims and questions of law. The BIA’s finding that Hernadez-Nolasco’s failed to provide enough evidence he would face torture upon his return to Honduras is a question of fact, not law. Thus, the Court lacked jurisdiction to decide the merits of his claim.

Petitions for Review Were Denied In Part And Dismissed In Part

The Court upheld the BIA’s denial of Hernandez-Nolasco’s petition for withholding of removal. The Court lacked jurisdiction to decide the merits of Hernadez-Nolasco’s claim he was entitled to deferral of removal under the CAT.

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