Carol Stephen v. Jefferson Sessions

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 3, 2018
• Docket: 15-72903
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 3 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT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 Nationality Act, 8 U.S.C. § 1159, as an alien who

“the Attorney General knows or has reason to believe . . . is or has

been an illicit trafficker in any controlled substance.” 8 U.S.C.

3 §1182(a)(2)(C). Since Stephen is a convicted methamphetamine

trafficker, she is ineligible for adjustment of status.

4. Despite being convicted of a particularly serious crime,

Stephen would be eligible for deferral of removal under the CAT if

she could show a clear probability of torture by or with the

acquiescence of Iraqi authorities. See 8 C.F.R. § 1208.17. To obtain

CAT relief, an alien must show, first, that it is more likely than not

that she will be tortured upon return to her homeland; and, second,

that there was either governmental action involved in that torture or

governmental acquiescence. Garcia-Milian v. Holder, 755 F.3d 1026,

1033 (9th Cir. 2014). Here, however, Stephen has failed to

demonstrate a sufficient likelihood that she would be tortured if she is

returned to Iraq. See Dhital v. Mukasey, 532 F.3d 1044, 1051–52 (9th

Cir. 2008) (per curiam).

Stephen has never claimed that she was tortured in Iraq, and she

has not established that her “Americaniz[ation],” tattoos, unwed

mother status, and/or her mother’s affiliation with the Assyrian

Democratic Movement make her more likely than not to be tortured in

Iraq. Stephen has also failed to show that Christians are particularly

susceptible of being tortured in Iraq. Nor has Stephen shown the Iraqi

4 state’s participation or complicity in any alleged torture that might be

visited on her. The Iraqi Constitution guarantees freedom of religion,

and the government has prosecuted and sentenced to death three

militants who targeted and murdered Christians due to their religion.

Moreover, Stephen’s allegation that deteriorating conditions have

hindered the Iraqi state from protecting Christians and other religious

minorities is unavailing because the state’s mere “ineffective[ness] in

preventing or investigating criminal activities” does not satisfy an

applicant’s burden to demonstrate entitlement to CAT. Garcia-

Milian, 755 F.3d at 1034. Stephen has not demonstrated that it is

more likely than not that she will be tortured in Iraq.

The petition for review is DENIED.