UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

YASSER HASSAN ALI ANABTAWI,

Petitioner,

v.

No. 93-2565

U.S. IMMIGRATION & NATURALIZATION

SERVICE,

Respondent.

On Petition for Review of an Order

of the Immigration and Naturalization Service.

(A-71-793-740)

Submitted: June 11, 1996

Decided: June 27, 1996

Before WILLIAMS, MICHAEL, and MOTZ, Circuit Judges.

_________________________________________________________________

Petition denied by unpublished per curiam opinion.

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COUNSEL

Denyse Sabagh, Douglas E. Ginsburg, METZGER, HOLLIS, GORDON & MORTIMER, Washington, D.C., for Appellant. Frank W.

Hunger, Assistant Attorney General, Robert Kendall, Jr., Assistant

Director, Marion E. Guyton, Office of Immigration Litigation, Civil

Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Yasser Hassan Ali Anabtawi challenges the decision of the Board

of Immigration Appeals ("BIA") affirming the immigration judge's

("IJ") order denying his request for a withholding of deportation

under the Immigration and Naturalization Act ("INA"). Because

Anabtawi's arguments were rejected by this court's recent en banc

decision in Kofa v. INS, 60 F.3d 1084 (4th Cir. 1995), we deny this

petition for review.

Anabtawi, a stateless Palestinian born in a refugee camp in Lebanon, lived in Algeria from 1971 to 1982. Anabtawi was admitted to

the United States in 1986 as a dependent of a foreign government

official. In 1987, this status terminated. On July 26, 1991, Anabtawi

was convicted in Virginia for distributing cocaine, and he received a

sentence of five years, with two and one-half years suspended.

During the deportation proceedings, Anabtawi requested asylum

and withholding from deportation. The IJ denied these requests as not

available to an alien convicted of an "aggravated felony" as defined

in 8 U.S.C.A. § 1101(a)(43) (West Supp. 1996), and ordered Anabtawi deported to Algeria. Anabtawi appealed to the BIA. The BIA

affirmed the IJ's decision and held that Anabtawi is statutorily precluded from applying for asylum or withholding of deportation.

In his petition for review filed in this court, Anabtawi contends

only that the BIA incorrectly construed the INA to automatically preclude him, because of his aggravated felony conviction, from applying for withholding of deportation. He contends that this

interpretation is contrary to the plain language of the statute, contrary

to the legislative intent, violates the United States' treaty obligations,

and violates due process by denying him an individual determination

on the issue of danger to the community of the United States.

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Withholding of deportation is generally mandatory"if the Attorney

General determines that [an] alien's life or freedom would be threatened . . . on account of race, religion, nationality, membership in a

particular social group, or political opinion." 8 U.S.C.A. § 1253(h)(1)

(West Supp. 1996). However, withholding of deportation is not permitted if the Attorney General determines that "the alien, having been

convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States." 8 U.S.C.A.

§ 1253(h)(2)(B) (West Supp. 1996). "[A]n alien who has been convicted of an aggravated felony shall be considered to have committed

a particularly serious crime." 8 U.S.C.A. § 1253(h)(2) (West Supp.

1996).

This court has upheld the BIA's interpretation of§ 1253(h)(2)(B)

to mean that conviction of a particularly serious crime necessarily

means the alien is a danger to the community of the United States.

Kofa v. INS, 60 F.3d 1084, 1088 (4th Cir. 1995) (en banc). Because

Anabtawi has been convicted of distributing cocaine, he is an aggravated felon under 8 U.S.C.A. § 1101(a)(43)(B) (West Supp. 1996). As

an alien convicted of an aggravated felony, he is considered to have

committed a particularly serious crime. 8 U.S.C.A.§ 1253(h)(2).

The issue in this case--whether, under the INA, an alien convicted

of an aggravated felony is per se a "danger to the community" and

therefore automatically ineligible for withholding from deportation--

was discussed in detail and resolved in the affirmative by our recent

decision in Kofa v. INS.* In that case, decided after this appeal was

filed, we held that 8 U.S.C.A. § 1253(h)(2)(B), which authorizes

withholding from deportation, does not require a separate determination of dangerousness to the community in the case of an aggravated

felon. Kofa, 60 F.3d at 1088. Rather, an alien convicted of an aggravated felony presents per se a "danger to the community," and,

accordingly, is ineligible for withholding. Id. Alternatively, the court

held that, even if the language of the statute is ambiguous, the BIA's

interpretation is reasonable and therefore entitled to deference under

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*By order dated January 26, 1994, we placed this case in abeyance

pending our en banc decision in the consolidated cases of Kofa v. INS,

No. 92-1246, and Moreno v. INS, No. 92-2522. On July 27, 1995, the

court issued its decision in those two cases.

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the principles of construction established by the Supreme Court in

Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467

U.S. 837, 844 (1984). Kofa, 60 F.3d at 1089.

Our decision in Kofa leaves nothing to resolve in this case. Because

we have held that an alien convicted of an aggravated felony is not

entitled to an individual determination of dangerousness, but poses

per se a danger to the community and therefore is ineligible for withholding from deportation, we uphold the BIA decision denying Anabtawi relief from deportation. We further note that by failing to raise

the issue during his appeal to the BIA, Anabtawi waived his argument

that the BIA's interpretation of the statute, as adopted by the Fourth

Circuit, violates the United States' treaty obligations under the Convention against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment. See Gandarillas-Zambrana v. Board of

Immigration Appeals, 44 F.3d 1251, 1255 (4th Cir.), cert. denied, ___

U.S. ___, 64 U.S.L.W. 3203 (U.S. Oct. 2, 1995) (No. 94-1720);

Farrokhi v. INS, 900 F.2d 697, 700 (4th Cir. 1990). The petition for

review is therefore denied. We dispense with oral argument because

the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

PETITION DENIED

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