Carol Stephen v. JEFFERSON B. SESSIONS III, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CAROL STEPHEN,
Petitioner,
v.
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
No. 15-72903
Agency No. A072-517-028
MEMORANDUM*
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.
FILED
APR 3 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2
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.

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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.

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§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

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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.

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