Mendy Massena v. MICHAEL B. MUKASEY, Attorney General of the United States

*After an examination of the briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the petition for review is submitted on the briefs and
record. See FED. R. A PP. P. 34(a)(2).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 2, 2008 *
Decided October 7, 2008
Before
JOEL M. FLAUM, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
TERENCE T. EVANS, Circuit Judge
No. 08‐1236
MENDY MASSENA,
Petitioner,
v.
MICHAEL B. MUKASEY, Attorney
General of the United States,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A 47 632 361
O R D E R
The Department of Homeland Security ordered Mendy Massena removed based on
its finding that Massena had been convicted of two aggravated felonies: assault and battery
and drug trafficking. After the Board of Immigration Appeals summarily affirmed the
Immigration Judge’s decision denying Massena withholding of removal and relief under
the Convention Against Torture, Massena petitioned this court for review. Because we lack
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 08‐1236 Page 2
jurisdiction to review either the DHS’s removal order or the IJ’s discretionary denial of
withholding of removal based on Massena’s conviction for a particularly serious crime, we
dismiss the petition for review.
Massena, who is 19 today, left Haiti for America at the age of eleven to join his
father, step‐mother, and siblings in Boston in 2000. Along with his family members, he
became a permanent resident of the United States. In October 2006, while still in high
school, he was charged with assault and battery on a police officer, possessing crack cocaine
with intent to distribute, and resisting arrest. He pleaded guilty to possessing crack cocaine
with intent to distribute in violation of Massachusetts Chapter 94C, § 32A(a), and was
placed on probation for two years. Four months later, in January 2007, Massena was
charged with two counts of assault and battery, one of which involved the use of a
dangerous weapon. He pleaded guilty to both counts and was sentenced to two years’
imprisonment.
On the basis of Massena’s conviction for assault and battery with a dangerous
weapon, DHS charged that Massena was subject to removal from the United States
pursuant to 8 U.S.C. § 101(a)(43)(F), and Massena was taken into custody. DHS later added
as a second basis for removal Massena’s 2006 conviction for possession of crack with intent
to distribute.
In September 2007 Massena applied for withholding of removal and relief under the
Convention Against Torture (CAT), claiming that he feared returning to Haiti. Massena
testified at a hearing on his application that, on two separate occasions while he was still a
child living in Haiti, gang members affiliated with political parties came to his home, fired
their guns, and admonished Massena that he must join them once he became an adult. In
addition, Massena submitted articles detailing the rising crime in Haiti and letters from his
family urging the immigration court to allow him to stay in the country.
Massena’s convictions for aggravated felonies would make him ineligible for
withholding of removal if either qualified as a “particularly serious” crime. See 8 U.S.C. §
1231(b)(3)(B)(ii); Tunis v. Gonzales, 447 F.3d 547, 548‐49 (7th Cir. 2006). Neither conviction
however, automatically qualified as “particularly serious” because Massena did not serve
five or more years of imprisonment for either of them. See Petrov v. Gonzales, 464 F.3d 800,
801 (7th Cir. 2006). It was thus up to the immigration judge to decide, as a matter of
discretion, whether at least one of Massena’s aggravated felonies was particularly serious.
See id.; Tunis, 447 F.3d at 549. The IJ reasoned that Massena’s drug‐trafficking conviction
was his most serious, and cited In re Y‐L, 23 I. & N. Dec. 270, 274 (BIA 2002), for the
proposition that drug‐trafficking crimes should be deemed “particularly serious” absent
extraordinary and compelling circumstances. The IJ discerned nothing unusual about

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No. 08‐1236 Page 3
Massena’s case and thus found that his crack conviction was particularly serious. Finally,
the IJ rejected Massena’s CAT claim. In his appeal to the BIA, Massena challenged only the
IJ’s determination that his drug‐trafficking crime was particularly serious and precluded
withholding of removal.
In his petition for review Massena renews only his argument that his possession of
crack with intent to distribute was not a particularly serious crime. But we lack jurisdiction
to review a final order of removal in any case where the alien is subject to removal based on
a conviction for an aggravated felony. 8 U.S.C. § 1252(a)(2)(C); Zamora‐Mallari v. Mukasey,
514 F.3d 679, 693‐94 (7th Cir. 2008). Furthermore, an IJ’s discretionary determination that
the underlying crime was “particularly serious” is also beyond our jurisdiction to review.
See 8 U.S.C. § 1252(a)(2)(B)(ii); Petrov, 464 F.3d at 801‐02; Ali v. Achim, 468 F.3d 462, 470 (7th
Cir. 2006). Therefore we retain jurisdiction only to ensure that the IJ did not commit legal
or constitutional error. See Tunis, 447 F.3d at 549; Ali, 468 F.3d at 470. And so Massena tries
to characterize his argument as one illuminating a legal error. But despite Massena’s
protestations to the contrary, the IJ correctly cited both the general rule governing whether a
conviction constituted a particularly serious crime and the more particular rule regarding
drug‐trafficking crimes articulated in In re Y‐L. See Bosede v. Mukasey, 512 F.3d 946, 950‐51
(7th Cir. 2008). We thus lack jurisdiction to further review the IJ’s discretionary
determination.
Accordingly, we DISMISS the petition for review.

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