Toolsie v. Lynch ( 2016 )

15-544
Toolsie v. Lynch
BIA
Sagerman, IJ
A205 308 528
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
28th day of January, two thousand sixteen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
BARRINGTON D. PARKER,
DENNY CHIN,
Circuit Judges.
_____________________________________
TIRNARINE TOOLSIE,
Petitioner,
v. 15-544
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Nataliya I. Gavlin, Gavlin &
Associates,C., New York, NY.
FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
Assistant Attorney General; Carl
McIntyre, Assistant Director; Nancy
E. Friedman, Senior Litigation
Counsel, 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 DISMISSED
for lack of jurisdiction.
Petitioner Tirnarine Toolsie, a native and citizen of
Suriname, seeks review of a February 4, 2015 decision of the
BIA affirming an October 2, 2014 decision of an Immigration Judge
(“IJ”) denying Toolsie’s application for withholding of removal
and relief under the Convention Against Torture (“CAT”). In re
Tirnarine Toolsie, No. A205 308 528 (B.I.A. Feb. 4, 2015), aff’g
No. A205 308 528 (Immig. Ct. Napanoch Oct. 2, 2014). We assume
the parties’ familiarity with the underlying facts and
procedural history in this case.
We generally lack jurisdiction to review a final order of
removal against an alien who, like Toolsie, is removable by
reason of having been convicted of an aggravated felony. 8
U.S.C. § 1252(a)(2)(C); Ortiz-Franco v. Holder, 782 F.3d 81,
86 (2d Cir. 2015). However, we retain jurisdiction to conduct
de novo review of “constitutional claims or questions of law.”
8 U.S.C. § 1252(a)(2)(D); Pierre v. Holder, 588 F.3d 767, 772
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(2d Cir. 2009). When assessing jurisdiction, we must “study the
arguments asserted” to “determine, regardless of the rhetoric
employed in the petition, whether it merely quarrels over the
correctness of the factual findings” or raises a true
constitutional claim or question of law. Xiao Ji Chen v. U.S.
Dep’t of Justice, 471 F.3d 315, 329 (2d Cir. 2006). None of
Toolsie’s arguments on appeal constitutes a constitutional claim
or question of law.
Toolsie first argues that the IJ clearly erred in making
an adverse credibility finding to reject Toolsie’s claim that
he is gay and consequently fears persecution and torture in his
native Suriname. The IJ found Toolsie’s testimony not credible,
in part, because Toolsie “initially testified that he had
practiced homosexuality” with a man he met on Facebook, see
Certified Administrative Record at 53, but on cross-examination,
admitted that he had never had physical contact with another
man. Toolsie asserts that the IJ’s credibility assessment was
premised on the erroneous assumption that “practicing
homosexuality” must entail intercourse or sexual touching.
Toolsie’s argument misreads the record. Not only did the
IJ also find Toolsie not credible because he failed to produce
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available corroborating evidence, but also Toolsie did, in fact,
claim on direct examination that he had “sexual relation[s]”
with the man he met through Facebook, Certified Administrative
Record at 96, disproving Toolsie’s claim that the IJ’s decision
rested on a specific and arbitrary definition of “practicing
homosexuality.” Thus, despite Toolsie’s efforts to
recharacterize the IJ’s decision, the argument “merely quarrels”
with a factual finding and is therefore beyond our jurisdiction.
Xiao Ji Chen, 471 F.3d at 329.
Toolsie next attacks the agency’s finding that he failed
to demonstrate a likelihood of persecution or torture in
Suriname. On this point, Toolsie attempts to manufacture a
legal error by arguing that the IJ failed to consider both
Toolsie’s testimony about his sister’s comments on homophobia
in Suriname and a passage from the 2013 State Department Country
Report on Human Rights Practices that states that the gay
community in Suriname is stigmatized and abused. Cf. Tambadou
v. Gonzales, 446 F.3d 298, 302 (2d Cir. 2006) (“We remand for
reconsideration or rehearing (or a new hearing) where the IJ’s
or BIA’s determination ‘is based on an inaccurate perception
of the record, omitting potentially significant facts.’”
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(quoting Tian-Yong Chen v. INS, 359 F.3d 121, 127 (2d Cir. 2004)).
This, too, is the type of “rhetoric” we must look past. Xiao
Ji Chen, 471 F.3d at 329. The IJ stated repeatedly that it found
Toolsie’s testimony not credible, and the IJ gave full
consideration to the State Department Country Report.
Toolsie’s real complaint, therefore, is about how the IJ weighed
the evidence, which we lack jurisdiction to review.
Finally, Toolsie challenges the agency’s determination
that the aggravated felony underlying the removal order, robbery
in the second degree, ranked as a “particularly serious crime.”
Withholding of removal is unavailable under the Immigration and
Nationality Act or the CAT if an alien has been convicted of
a “particularly serious crime.” 8 U.S.C. § 1231(b)(3)(B)(ii);
8 C.F.R. § 1208.16(d)(2). If, as here, the crime is not per se
particularly serious, 8 U.S.C. § 1231(b)(3)(B)(iv) (providing
that aggravated felonies that result in an aggregate prison
sentences of five years or more are particularly serious as a
matter of law), then the agency evaluates whether it is
particularly serious by “examin[ing] the nature of the
conviction, the type of sentence imposed, and the circumstances
and underlying facts of the conviction.” In Re N-A-M-, 24 I.
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& N. Dec. 336, 342 (BIA 2007). The IJ considered these factors
and found that Toolsie had been convicted of a particularly
serious crime. Toolsie argues that his crimes should not be
deemed particularly serious because a state court judge granted
his motion for a “Violent Felony Override” based on a finding
that the offense did not involve the use of a deadly or dangerous
instrument or the infliction of serious physical injury.
N.Y.C.R.R. § 1900.4(c)(1)(iii). Toolsie, however, never
introduced any documentation of the state court judge’s ruling
in the proceedings below, and so it is outside the administrative
record. 8 U.S.C. § 1252(b)(4)(A). And, even if he had
introduced the ruling, it would be but one more piece of evidence
for the IJ to weigh in making a factual determination about the
seriousness of Toolsie’s offense. His argument is thus neither
a constitutional claim nor a question of law. It is therefore
beyond our jurisdiction. Ortiz-Franco, 782 F.3d at 91.
For the foregoing reasons, the petition for review is
DISMISSED. As we have completed our review, the pending motion
for a stay of removal in this petition is DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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