Vaval v. Holder , 426 F. App'x 15 ( 2011 )

10-1956-ag
Vaval v. Holder
BIA
Page, IJ
A029 524 074
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 A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 8th day of July, two thousand eleven.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 GERARD E. LYNCH,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _______________________________________
12
13 JEAN PATRICK VAVAL, a.k.a. PATRICK J.
14 VAVAL, a.k.a. PATRICK SHERISKA, a.k.a.
15 JEAN VAVAE,
16 Petitioner,
17
18 v. 10-1956-ag
19 NAC
20 ERIC H. HOLDER, JR., UNITED STATES
21 ATTORNEY GENERAL,
22 Respondent.
23 _______________________________________
24
25 FOR PETITIONER: Fay Y. Parris, New York, New York.
26
27 FOR RESPONDENT: Tony West, Assistant Attorney
28 General; Emily Anne Radford,
29 Assistant Director; Kohsei Ugumori,
30 Attorney, Office of Immigration
31 Litigation, United States Department
32 of Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 decision of the Board of Immigration Appeals (“BIA”), it is
3 hereby ORDERED, ADJUDGED, AND DECREED that the petition for
4 review is DISMISSED.
5 Petitioner Jean Patrick Vaval, a native and citizen of
6 Haiti, seeks review of an April 15, 2010, order of the BIA
7 affirming immigration judge (“IJ”) Alan Page’s November 25,
8 2009, denial of his application for deferral of removal
9 under the Convention Against Torture (“CAT”). In re Jean
10 Patrick Vaval, No. A029 524 074 (B.I.A. April 15, 2010),
11 aff’g No. A029 524 074 (Immig. Ct. N.Y. City Nov. 25, 2009).
12 We assume the parties’ familiarity with the underlying facts
13 and procedural history of this case.
14 Under 8 U.S.C. § 1252(a)(2)(C), we lack jurisdiction to
15 review any final order of removal against an alien who is
16 removable by reason of having been convicted of an
17 aggravated felony. Although we have never expressly held
18 that this jurisdictional bar applies to claims for deferral
19 of removal under the CAT, we have assumed, without
20 discussion, that it is indeed applicable to such claims.
21 See De La Rosa v. Holder, 598 F.3d 103, 107 (2d Cir. 2010);
22 see also Poole v. Mukasey, 522 F.3d 259, 262 (2d Cir. 2008).
23 Thus, because Vaval was found removable as an aggravated
2
1 felon, we find, as we did in Poole, that we lack
2 jurisdiction to consider his challenge to the agency’s
3 denial of his claim for deferral of removal. See 8 U.S.C.
4 § 1252(a)(2)(C); see also Poole, 522 F.3d at 262.
5 Notwithstanding 8 U.S.C. § 1252(a)(2)(C), we retain
6 jurisdiction to consider any “constitutional claims or
7 questions of law” raised in a petition for review. See
8 8 U.S.C. § 1252(a)(2)(D). Here, Vaval argues that the
9 agency erred by failing to consider evidence in the record,
10 specifically (1) country conditions evidence documenting
11 human rights abuses in Haiti; (2) the testimony and
12 supporting documentation of his expert witness, Michelle
13 Karshan; and (3) a medical report documenting his
14 preexisting injuries. However, we have rejected the notion
15 that the agency must “expressly parse or refute on the
16 record each individual argument or piece of evidence offered
17 by the petitioner.” Jian Hui Shao v. Mukasey, 546 F.3d 138,
18 169 (2d Cir. 2008); see also Xiao Ji Chen v. U.S. Dep’t of
19 Justice, 471 F.3d 315, 337 n.17 (2d Cir. 2006) (presuming
20 that the agency “has taken into account all of the evidence
21 before [it], unless the record compellingly suggests
22 otherwise”). In any event, both the BIA and the IJ
3
1 explicitly considered the above-cited evidence in finding
2 that Vaval failed to establish his eligibility for deferral
3 of removal. Thus, Vaval’s challenge to the agency’s
4 decision is “essentially a quarrel about fact-finding or the
5 exercise of discretion” rather than a constitutional or
6 legal claim. See Barco-Sandoval v. Gonzales, 516 F.3d 35,
7 39 (2d Cir. 2008). Accordingly, we lack jurisdiction to
8 consider his petition for review. See 8 U.S.C.
9 § 1252(a)(2)(C) and (D); Poole, 522 F.3d at 262.
10 For the foregoing reasons, the petition for review is
11 DISMISSED. As we have completed our review, any stay of
12 removal that the Court previously granted in this petition
13 is VACATED, and any pending motion for a stay of removal in
14 this petition is DISMISSED as moot.
15 FOR THE COURT:
16 Catherine O’Hagan Wolfe, Clerk
17
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