Morris v. Holder , 547 F. App'x 4 ( 2013 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 13-1608
KENNETH KENROY MORRIS,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Selya, Stahl, and Lipez,
Circuit Judges.
Gregory C. Osakwe on brief for petitioner.
Tracey N. McDonald, Trial Attorney, Office of Immigration
Litigation, United States Department of Justice, Stuart F. Delery,
Acting Assistant Attorney General, and Ernesto H. Molina, Jr.,
Assistant Director, on brief for respondent.
December 16, 2013
Per Curiam. Petitioner Kenneth Kenroy Morris, a native
and citizen of Jamaica, petitions for review of a decision by the
Board of Immigration Appeals (BIA) affirming the denial of his
application for deferral of removal under the Convention Against
Torture (CAT). Because Morris was found removable on the basis of
an aggravated felony conviction and he presents neither questions
of law nor constitutional claims, we lack jurisdiction to review
the BIA's decision. We therefore dismiss his petition for review.
Morris was admitted to the United States as a lawful
permanent resident in January of 1992. In May of 2004, following
a guilty plea, he was convicted in the State of Connecticut
Superior Court of conspiracy to commit robbery in the first degree
-- firearm threat, in violation of Connecticut General Statutes
§§ 53a-134(a)(4) and 53a-48(a). He was sentenced to five years of
incarceration (the execution of which sentence was suspended) and
three years of probation.
On February 25, 2012, the Department of Homeland Security
served him with a Notice to Appear (NTA) charging him with
removability based upon his conviction for an aggravated felony.
See 8 U.S.C. § 1227(a)(2)(A)(iii) ("Any alien who is convicted of
an aggravated felony at any time after admission is deportable.").
Morris admitted the factual allegations in the NTA and conceded the
charges of removability. The immigration judge (IJ) determined
that his conviction for an aggravated felony rendered him
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ineligible for asylum. See id. § 1158(b)(2)(A)(ii), (B)(i).
Moreover, because he received a five-year sentence of
incarceration, his aggravated felony constituted a particularly
serious crime, rendering him ineligible for withholding of removal
under the Immigration and Nationality Act, see id. § 1231(b)(3)(B),
and under the CAT, see 8 C.F.R. § 1208.16(d)(2). The IJ therefore
construed his application for CAT protection as one for deferral of
removal. The IJ denied relief, concluding that Morris had provided
insufficient evidence to establish a clear probability that he
would be targeted by the Jamaican police for mistreatment based
upon his status as a deportee.
The BIA dismissed Morris's subsequent appeal, noting that
he did not challenge the IJ's finding that he had been convicted of
a particularly serious crime and affirming the IJ's conclusion that
he had failed to establish a clear probability that he would be
tortured if he were removed to Jamaica.
Because Morris is removable for having been convicted of
an aggravated felony (a point he does not appear to contest),1 we
1
In a footnote, Morris suggests that he was placed in removal
proceedings "based on a questionable conviction . . . of very
doubtful provenance." Aside from this one unexplained assertion,
Morris does not press the argument and we consider it waived. See
United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues
adverted to in a perfunctory manner, unaccompanied by some effort
at developed argumentation, are deemed waived."). In any event, in
his written pleading before the immigration court, he expressly
conceded all factual allegations and charges of removability
contained in the NTA, including that he was subject to removal due
to his conviction for an aggravated felony. We find nothing in the
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lack jurisdiction to consider his claims. See 8 U.S.C.
§ 1252(a)(2)(C) ("[N]o court shall have jurisdiction to review any
final order of removal against an alien who is removable by reason
of having committed a criminal offense covered in
[§ 1227(a)(2)(A)(iii)]."). Although there is an exception for
"review of constitutional claims or questions of law raised upon a
petition for review," id. § 1252(a)(2)(D), he raises no such claims
or questions here. Instead, Morris challenges the IJ's (and, by
extension, the BIA's affirmance of the IJ's) credibility
assessments, evaluation of the evidence, and ultimate determination
that he had not carried his burden to show that it was more likely
than not that he would be tortured. These are precisely the types
of fact-based determinations that we are statutorily barred from
reviewing. See Conteh v. Gonzales, 461 F.3d 45, 63 (1st Cir. 2006)
("[J]udicial review of the factual findings underlying a removal
order based on an aggravated felony conviction remains foreclosed.
This proscription extends to review of the BIA's factual findings
as to credibility, evidentiary weight, and satisfaction of a
correctly framed burden of proof.") (citation omitted); see also
Telyatitskiy v. Holder, 628 F.3d 628, 631 (1st Cir. 2011). Indeed,
insofar as Morris has not responded to the government's
jurisdictional argument, he does not appear to contend otherwise.
record that would indicate that his conviction was invalid.
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Because we lack jurisdiction to consider Morris's claims,
his petition for review is dismissed.
So ordered.
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