Stephenson v. Lynch , 634 F. App'x 328 ( 2016 )

15-122
Stephenson v. Lynch
BIA
Straus, IJ
A075 199 250
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE
(WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the
Second Circuit, held at the Thurgood Marshall United States
Courthouse, 40 Foley Square, in the City of New York, on the 24th day
of February, two thousand sixteen.
PRESENT:
PIERRE N. LEVAL,
DEBRA ANN LIVINGSTON,
SUSAN L. CARNEY,
Circuit Judges.
_____________________________________
JOSEPH ANTHONY STEPHENSON, AKA
JOSEPH ANTHONY BUDDOO,
Petitioner,
v. 15-122
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: JUSTIN CONLON, Hartford, Connecticut.
FOR RESPONDENT: YANAL H. YOUSEF, Trial Attorney; Benjamin
C. Mizer, Principal Deputy Assistant
Attorney General; Ernesto H. Molina, Jr.,
Assistant Director, Office of Immigration
Litigation, United States Department of
Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a Board
of Immigration Appeals (“BIA”) decision, it is hereby ORDERED,
ADJUDGED, AND DECREED that the petition for review is DENIED in part
and DISMISSED in part.
Petitioner Joseph Anthony Stephenson, a native and citizen of
Jamaica, seeks review of a December 15, 2014, decision of the BIA
affirming the July 22, 2014, decision of an Immigration Judge (“IJ”)
denying Stephenson deferral of removal under the Convention Against
Torture (“CAT”) and ordering him removed. In re Joseph Anthony
Stephenson, No. A075 199 250 (B.I.A. Dec. 15, 2014), aff’g No. A075
199 250 (Immig. Ct. Hartford July 22, 2014). We assume the parties’
familiarity with the underlying facts and procedural history in this
case.
Under the circumstances of this case, we have reviewed the IJ’s
decision as modified by the BIA, i.e., minus the basis for denying
relief that the BIA did not consider (the IJ’s finding that Stephenson
was removable for having been convicted of two crimes involving moral
turpitude). See Xue Hong Yang v. Dep’t of Justice, 426 F.3d 520,
522 (2d Cir. 2005). Although we generally lack jurisdiction to
review a final order of removal against an alien, such as Stephenson,
who is removable by reason of having committed an aggravated felony,
see 8 U.S.C. § 1252(a)(2)(C); Ortiz-Franco v. Holder, 782 F.3d 81,
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86 (2d Cir. 2015), we retain jurisdiction to review constitutional
claims and questions of law, which we review de novo, see 8 U.S.C.
§ 1252(a)(2)(D); Pierre v. Holder, 588 F.3d 767, 772 (2d Cir. 2009).
Preclusion
Stephenson’s argument that the doctrines of res judicata and
collateral estoppel precluded the Department of Homeland Security
(“DHS”) from lodging charges of removability against him based on
his 2009 robbery conviction raises a question of law that we have
jurisdiction to review. See Channer v. Dep’t of Homeland Sec., 527
F.3d 275, 279 (2d Cir. 2008). His argument, however, is foreclosed
by Channer. The Government may institute a second removal
proceeding to charge an alien as removable for an aggravated felony
conviction when the second charge is based on a different conviction
for a distinct criminal offense than the conviction underlying the
first charge. This rule applies irrespective of whether the charge
could have been raised in an earlier proceeding. Id. at 281-82.
In Stephenson’s first proceeding, DHS did not charge him as
removable on account of his 2009 robbery conviction (relying solely
on his 2004 and 2007 larceny convictions). And, in that first
proceeding, the IJ declined to consider whether Stephenson’s robbery
conviction constituted an aggravated felony barring him from
cancellation of removal. Therefore, because DHS had not previously
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charged Stephenson as removable based on his robbery conviction, and
the IJ had never decided whether that conviction constituted an
aggravated felony, DHS was not precluded from initiating a second
removal proceeding based on that conviction, nor was the IJ barred
from deciding the issue. See id. The petition for review is denied
to this extent.
Deferral of Removal
Stephenson argues that, given the IJ’s determination that he
is likely to be detained upon removal to Jamaica, the IJ erred as
a matter of law in concluding that he failed to demonstrate a
likelihood of torture or a likelihood that Jamaican officials would
torture or acquiesce to his torture with the requisite specific
intent. He relies on country conditions evidence discussing
unlawful killings by police, gang violence, societal stigmas against
the mentally ill, and instances of abuse against prisoners (both
mentally ill and healthy). Stephenson’s challenge to the IJ’s
evaluation of the country conditions evidence and determination as
to the likelihood of events in Jamaica upon his return is a challenge
to the IJ’s factual findings, which we lack jurisdiction to review.
See Pierre v. Gonzales, 502 F.3d 109, 121 (2d Cir. 2007); see also
Hui Lin Huang v. Holder, 677 F.3d 130, 134-35 (2d Cir. 2012). We
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dismiss the petition for review to this extent. See Ortiz-Franco,
782 F.3d at 91.
For the foregoing reasons, the petition for review is DENIED
in part and DISMISSED in part.
FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk
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