NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 12-2953

___________

GERMAN RENE CARDENAS PERDOMO,

a/k/a German Cardenas,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

 Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A036-859-940)

Immigration Judge: Honorable Leo Finston

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

June 13, 2013

Before: FUENTES, VANASKIE and VAN ANTWERPEN, Circuit Judges

(Opinion filed June 14, 2013)

___________

OPINION

___________

PER CURIAM

German Rene Cardenas Perdomo (“Cardenas”) petitions for review of the Board 

of Immigration Appeals‟ (“BIA” or “Board”) dismissal of his appeal. For the following 

reasons, we will deny the petition for review.
2

I.

Cardenas, a citizen of El Salvador, entered the United States as a lawful permanent 

resident in 1979. In 2003, he pled guilty to criminal sale of cocaine in the fourth degree, 

in violation of N.Y. Penal Law § 220.34(1), and was sentenced to six months‟ 

imprisonment followed by five years‟ probation. In 2008, he was resentenced to one year 

of imprisonment for violating his probation after pleading guilty to criminal possession of 

cocaine in the seventh degree, in violation of N.Y. Penal Law § 220.03. Cardenas was 

later served with a Notice to Appear charging him with being removable under 8 U.S.C. 

§ 227(a)(2)(A)(iii) on the basis of an aggravated felony conviction as defined by 8 U.S.C. 

§ 1101(a)(43)(B), and under 8 U.S.C. § 1227(a)(2)(B)(i) on the basis of a controlled 

substance violation.

At a hearing before the Immigration Judge (“IJ”), Cardenas admitted the factual 

allegations but denied that he was removable for having committed an aggravated felony. 

The IJ sustained the aggravated felony charge of removability but granted him two 

continuances to pursue post-conviction relief for his 2003 conviction under Padilla v. 

Kentucky, 559 U.S. 356 (2010). At his merits hearing, the IJ determined that Cardenas‟ 

aggravated felony conviction rendered him ineligible for asylum and withholding of 

removal and denied his request for relief under the Convention Against Torture (“CAT”)

because he had not demonstrated that he would likely face torture upon his return to El 

Salvador.

On appeal to the BIA, Cardenas asserted that the IJ erred in denying his “claim of 

fear,” erred in denying him deferral of removal under the CAT, and abused his discretion 
3

by denying his request for an “adjournment” to continue to pursue post-conviction relief. 

The Board dismissed his appeal, noting that he had not disputed the IJ‟s finding of 

removability based on his aggravated felony and controlled substance convictions. The 

BIA further determined that the IJ properly denied Cardenas‟ asylum and withholding of 

removal applications because of his disqualifying convictions, and that his request for 

deferral of removal under the CAT was proper because he had not shown that Salvadoran 

criminal gangs would likely torture him. Additionally, the Board noted that his claim 

regarding a continuance was not properly before it because he had not requested a 

continuance at his merits hearing and alternatively, because he had not shown good cause 

for such a continuance.

II.

Generally, we lack jurisdiction to review a final order of removal against an alien, 

like Cardenas, who is removable for having been convicted of certain criminal offenses. 

8 U.S.C. § 1252(a)(2)(C). We retain jurisdiction, however, to review any constitutional 

or legal questions raised in his petition for review. See 8 U.S.C. § 1252(a)(2)(D); Cruz v. 

Att‟y Gen., 452 F.3d 240, 246-47 (3d Cir. 2006). 
4

III.

Cardenas first challenges whether his conviction for criminal sale of cocaine is an 

aggravated felony. We have jurisdiction to review this question.

1

 Jeune v. Att‟y Gen., 

476 F.3d 199, 201 (3d Cir. 2007) (exercising plenary review over petitioner‟s legal 

argument that he was not convicted of aggravated felony). Under 8 U.S.C. 

§ 1227(a)(43)(B), a state drug conviction is an aggravated felony if it would be 

punishable as a felony under the federal Controlled Substances Act (“CSA”). See

Thomas v. Att‟y Gen., 625 F.3d 134, 142 (3d Cir. 2010); Evanson v. Att‟y Gen., 550 

F.3d 284, 288-89 (3d Cir. 2008).

We apply the formal categorical approach to determine whether Cardenas‟ 

conviction would be punishable as a felony under the CSA. Moncrieffe v. Holder, 133 S. 

Ct. 1678, 1684-85 (2013). Application of this approach requires us to examine N.Y. 

Penal Law § 220.34(1), without considering the particular facts underlying Cardenas‟

conviction, to determine whether a violation is punishable as a felony under the CSA. 

Garcia v. Att‟y Gen., 462 F.3d 287, 291 (3d Cir. 2006). Under § 220.34(1), “[a] person is 

guilty of criminal sale of a controlled substance in the fourth degree when he knowingly 

 

1

The Government asserts that we lack jurisdiction to consider this argument because 

Cardenas failed to raise it on appeal to the BIA. However, the Board addressed the issue 

sua sponte, by holding that Cardenas was not eligible for asylum or withholding of 

removal because he had “been convicted of a disqualifying „particularly serious crime,‟” 

a determination made after a finding that the petitioner has been convicted of an 

aggravated felony. See 8 U.S.C. § 1231(b)(3)(B); Alaka v. Att‟y Gen., 456 F.3d 88, 105 

(3d Cir. 2006) (offense must be aggravated felony in order to be classified as particularly 

serious crime); see also Lin v. Att‟y Gen., 543 F.3d 114, 123-24 (3d Cir. 2008) (noting 

that when the BIA sua sponte addresses an otherwise unexhausted issue, failure to raise 

the issue on administrative appeal may be excused).
5

and unlawfully sells a narcotic preparation.” “Sell” is defined to mean “sell, exchange, 

give or dispose of to another, or to offer or agree to do the same.” N.Y. Penal Law 

§ 220.00. Therefore, the statute under which Cardenas was convicted in 2003 applies to 

any transfer of cocaine. See People v. Starling, 650 N.E.2d 387, 390 (N.Y. 1995) (by 

enacting broad definition of “sell,” legislature evinced clear intent to include any form of 

transfer of controlled substance).

Our review leads us to conclude that Cardenas‟ 2003 felony conviction for 

criminal sale of cocaine under N.Y. Penal Law § 220.34(1) corresponded to the federal 

offense of distribution of a controlled substance under 21 U.S.C. § 841(a)(1).

2

 Under this 

statute, “distribute” means “to deliver,” 21 U.S.C. § 802(11), and “deliver” means “the 

actual, constructive, or attempted transfer of a controlled substance,” 21 U.S.C. § 802(8). 

Furthermore, remuneration is not required to satisfy the requirements of “delivery” or 

“distribution” of a controlled substance. See United States v. Wallace, 532 F.3d 126, 129 

(2d Cir. 2008). Accordingly, Cardenas‟ 2003 conviction is punishable as a felony under 

the CSA because violations of § 841(a)(1) are punishable by a term of imprisonment 

greater than one year.3See 21 U.S.C. § 841(b)(1)(C); Gerbier v. Holmes, 280 F.3d 297, 

316 (3d Cir. 2002).

 

2 Cardenas‟ argument that his conviction for criminal sale of cocaine corresponds to a 

misdemeanor conviction for simple possession of cocaine under 18 U.S.C. § 844(a) is 

misplaced, as N.Y. Penal Law § 220.34(1) criminalizes drug sales, not drug possession.

3

Even if we were to apply the modified categorical approach, as urged by Cardenas, see

Thomas, 625 F.3d at 143 (applying modified categorical approach to analyze New York 

misdemeanor conviction for criminal sale of marijuana), Cardenas has failed to 

demonstrate that he did not, by pleading guilty, admit the elements of the offense of 
6

Cardenas further alleges that the BIA erred by determining that his conviction for 

an aggravated felony rendered him ineligible for withholding of removal.4 An 

aggravated felony is a “particularly serious crime” for the purpose of eligibility for 

withholding if, as here, the alien is sentenced to less than five years and the Attorney 

General exercises his discretion to determine that the crime was “particularly serious.” 8 

U.S.C. § 1231(b)(3)(B). A drug trafficking conviction is presumptively a “particularly 

serious crime”; however, that presumption may be overcome by showing “extraordinary 

and compelling circumstances.”5 Matter of Y-L-, 23 I. & N. Dec. 270, 276 (BIA 2002). 

 

criminal sale of cocaine. Furthermore, he has not argued that the Government failed to 

meet its burden of proof by providing the certificate of disposition relating to his 2003 

conviction. See 8 U.S.C. § 1229a(c)(3)(B) (listing documents that constitute proof of 

criminal conviction).

4

The Government asserts that we also lack jurisdiction to consider this argument because 

of Cardenas‟ failure to raise it before the BIA. However, as discussed above in note one, 

the BIA sua sponte considered this issue. Accordingly, we excuse Cardenas‟ failure to 

raise it in his administrative appeal. See Lin, 543 F.3d at 123-24.

5

Those circumstances, at a minimum, must include: 

(1) a very small quantity of controlled substance; (2) a very modest amount 

of money paid for the drugs in the offending transaction; (3) merely 

peripheral involvement by the alien in the criminal activity, transaction, or 

conspiracy; (4) the absence of any violence or threat of violence, implicit or 

otherwise, associated with the offense; (5) the absence of any organized 

crime or terrorist organization involvement, direct or indirect, in relation to 

the offending activity; and (6) the absence of any adverse or harmful effect 

of the activity or transaction on juveniles.

Lavira v. Att‟y Gen., 478 F.3d 158, 161-62 (3d Cir. 2007) (quoting Matter of Y-L-, 23 I. 

& N. Dec. at 276-77), overruled on other grounds by Pierre v. Att‟y Gen., 528 F.3d 180 

(3d Cir. 2008) (en banc). This test is a conjunctive test; accordingly, all circumstances 

must be present to warrant a departure. Id. at 162.
7

Here, the BIA reasonably concluded that Cardenas remained ineligible for withholding 

because he did not present any evidence of these circumstances to warrant a departure 

from the presumption.

As an aggravated felon convicted of a “particularly serious crime,” Cardenas could 

only apply for deferral of removal under the CAT. See Khouzam v. Att‟y Gen., 549 F.3d 

235, 243 (3d Cir. 2008). We retain jurisdiction to review Cardenas‟ legal questions 

regarding his eligibility for CAT relief. See Pierre, 528 F.3d at 184. As an initial matter, 

Cardenas‟ arguments that the BIA erred in relying on the “specific intent doctrine” and 

by not conducting a “willful blindness” analysis are misplaced, as we have previously 

held that “the CAT requires a showing of specific intent” and that “[w]illful blindness can 

be used to establish knowledge but it does not satisfy the specific intent requirement in 

the CAT.” Id. at 189, 190.

Cardenas also alleges that the BIA failed to consider relevant evidence concerning 

whether he established eligibility for deferral of removal.6 Despite the limitations on our 

jurisdiction noted above, we may review this claim. See Green, 694 F.3d at 508

(addressing the merits of criminal alien‟s claim that “the IJ and BIA committed legal 

 

6 Cardenas appears to also challenge the weight that the agency gave to his evidence 

when evaluating his eligibility for CAT relief. See Green v. Att‟y Gen., 694 F.3d 503, 

508 (3d Cir. 2012) ((recognizing that petitioner‟s “real argument is not that relevant 

evidence was ignored, but rather that the IJ incorrectly weighed evidence in making 

factual determinations.”). However, it is clear that we lack jurisdiction over such a claim. 

See Pieschacon-Villegas v. Att‟y Gen., 671 F.3d 303, 309 (3d Cir. 2011) (court lacks 

jurisdiction to review criminal alien‟s disagreement with BIA‟s determination that his 

evidence is insufficient to demonstrate eligibility for CAT relief.).
8

error by ignoring relevant evidence in the record”). But Cardenas has failed to identify 

any specific evidence that was overlooked, and we discern no error.

7

We also cannot understand how the IJ violated Cardenas‟ due process rights by 

denying his request for another continuance to continue to pursue post-conviction relief 

in state court, as he never made such a request at his merits hearing. See DelgadoSobalvarro v. Att‟y Gen., 625 F.3d 782, 787 (3d Cir. 2010) (showing of substantial 

prejudice required to establish due process violation). Furthermore, his conviction

remains final for immigration purposes despite any pending collateral attack. Paredes v. 

Att‟y Gen., 528 F.3d 196, 198-90 (3d Cir. 2008); cf. Chaidez v. United States, 133 S. Ct. 

1103, 1105 (2013) (holding that Padilla is not retroactively applicable to cases on 

collateral review).

Finally, in his brief, Cardenas appears to assert that his removal would work a 

hardship on his children. He did not exhaust this claim before the Board, and we 

therefore lack jurisdiction to consider it. See 8 U.S.C. § 1252(d)(1); Castro v. Att‟y Gen., 

671 F.3d 356, 365 (3d Cir. 2012). In any event, we would lack jurisdiction to consider 

any discretionary decision, including any “exceptional and extremely unusual” hardship 

determination. See 8 U.S.C. § 1252(a)(2)(B)(i); Patel v. Att‟y Gen., 619 F.3d 230, 232 

(3d Cir. 2010).

IV.

 

7

Furthermore, we lack jurisdiction to consider the factual question of whether Cardenas 

is likely to be tortured in El Salvador. Kaplun v. Att‟y Gen., 602 F.3d 260, 271 (3d Cir. 

2010) (question of what is likely to happen to petitioner if removed is factual). To the 

extent that Cardenas alleges that what is likely to happen to him amounts to the legal 
9

For the foregoing reasons, we will deny the petition for review. The 

Government‟s request to withdraw its motion to dismiss is granted.

 

definition of torture, the BIA reasonably concluded that it did not. See id. at 271-72.