Rudis Gutierrez-Molina v. Attorney General United States ( 2019 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 19-1374
RUDIS ERNESTO GUTIERREZ-MOLINA,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
On Petition for Review of a Final Order
of the Board of Immigration Appeals
Immigration Judge: Honorable Kuyomars Q. Golparvar
(No. A095-487-691)
Submitted Under Third Circuit L.A.R. 34.1(a)
September 25, 2019
Before: SMITH, Chief Judge, McKEE, AMBRO, Circuit Judges
(Opinion filed: September 26, 2019)
OPINION *
AMBRO, Circuit Judge
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Petitioner Rudis Ernesto Gutierrez-Molina seeks to defer his removal from the
United States. He is a former member of the MS-13 gang who was convicted in the
United States of racketeering conspiracy to commit murder. While serving his prison
sentence, he converted to Christianity and renounced his gang affiliation. He does not
contest his removability nor that he has committed a crime of involving moral turpitude.
He seeks deferral under the Convention Against Torture (“CAT”), claiming that he will
be tortured and murdered if he is removed to El Salvador. The Immigration Judge (“IJ”)
denied Gutierrez-Molina’s application, concluding that he is not likely to be harmed if he
is removed, and the BIA affirmed. He filed with us a petition for review.
I. Facts and Procedural History
A. Background
Gutierrez-Molina came to the United States with his mother and father in 2002
when he was 10 years old. At approximately 14, he was recruited to join MS-13. He
now has a 10-year old daughter who is an American citizen.
The Department of Homeland Security (“DHS”) initially began consolidated
proceedings against Gutierrez-Molina and his mother in 2002. DHS charged him with
removability under 8 U.S.C. § 1182(a)(6)(A)(i) as an alien present in the United States
without permission or parole. Following reopening after an in absentia order of removal
in 2011, his mother conceded removability on his behalf. She sought for her and her son
asylum, withholding of removal, and CAT protection based on the threat of abuse in El
Salvador by his father.
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In June 2016, Gutierrez-Molina, then 24, pled guilty to racketeering conspiracy to
commit murder, in violation of 18 U.S.C. §§ 1962(d) and 1963. He was sentenced to 60
months in prison, where, as noted, he converted to Christianity and renounced his
allegiance to MS-13.
Following his conviction, Gutierrez-Molina’s proceedings were severed from his
mother’s and administrative closure was granted until such time as he was returned to
DHS custody. It moved to re-calendar the proceedings in April 2018 and then
additionally charged him with removability under 8 U.S.C. § 1182(a)(2)(A)(i)(I) as an
alien convicted of a crime involving moral turpitude.
B. Removal proceedings before the Immigration Judge
The IJ found Gutierrez-Molina to be credible but ultimately denied his application
for deferral of removal under the CAT. He noted that Gutierrez-Molina has not been
back to El Salvador since 2002. Though gang activity remains a problem there, along
with government corruption, the IJ found significant, ongoing efforts by the El
Salvadoran police and government to combat both. The IJ also emphasized that
Gutierrez-Molina could take steps, such as removing his tattoos or changing his name,
that would “make it very unlikely he would be harmed or mistreated in any way.” App.
64. On this basis, he concluded that “what is likely to happen if the alien is removed is
nothing.” Id. at 65.
The IJ also found that, even if Gutierrez-Molina were targeted or harmed in any
way by gangs, that would not constitute torture because the government would not
acquiesce to it. If anyone threatened Gutierrez-Molina, he could file a complaint with the
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police, who would “investigate, arrest, and potentially prosecute anyone that would try to
do harm” to him. Id. The IJ thus concluded there was insufficient evidence showing it is
more likely than not that Gutierrez-Molina would be tortured if returned to El Salvador.
C. The Board affirms
The Board of Immigration Appeals reviewed for clear error the IJ’s factual finding
that “nothing” would likely happen to Gutierrez-Molina if removed to El Salvador.
Finding none, it affirmed.
II. Standard of Review
The Board exercised jurisdiction under 8 C.F.R. §§ 1003.1(b)(3) and 1240.15,
which grant it appellate jurisdiction over the decisions of immigration judges in removal
proceedings. We have jurisdiction under 8 U.S.C. § 1252(a)(1).
But the scope of our review is narrow. Where a petitioner has been convicted of a
crime involving moral turpitude, we review the petition only to the extent it raises
questions of law or constitutional claims. See 8 U.S.C. § 1252(a)(2)(C)–(D); Kaplun v.
Att’y Gen., 602 F.3d 260, 265 (3d Cir. 2010). Those claims we review de novo. Myrie v.
Att’y Gen., 855 F.3d 509, 515 (3d Cir. 2017). Where the BIA affirms and partially
reiterates the IJ’s discussions and determinations, we review both decisions. Id.III. Discussion
An applicant for CAT deferral bears the burden of showing “it is more likely than
not that he or she would be tortured if removed to the proposed country of removal.” 8
C.F.R. § 1208.16(c)(2); Kamara v. Att’y Gen., 420 F.3d 202, 212–13 (3d Cir. 2005). He
must show both that he would likely suffer harm if returned and that the harm would
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amount to the legal definition of torture. This leaves the IJ to determine “(1) what is
likely to happen to the petitioner if removed; and (2) does what is likely to happen
amount to the legal definition of torture?” Myrie, 855 F.3d at 516 (quoting Kaplun, 602
F.3d at 271).
The first inquiry involves only questions of fact, distinct from any legal inquiry.
Id. The Board reviews the IJ’s findings here for clear error. The second issue is a mixed
question of fact and law, and so the Board reviews it de novo. Id.Because Gutierrez-Molina does not dispute that he is removable nor that he pled
guilty to a crime involving moral turpitude, we lack jurisdiction to review factual
challenges to the BIA or IJ’s rulings. Under our precedent, “arguments such as that an
Immigration Judge or the BIA incorrectly weighed evidence, failed to consider evidence
or improperly weighed equitable factors are not questions of law under § 1252(a)(2)(D).”
Chiao Fang Ku v. Att’y Gen., 912 F.3d 133, 144 (3d Cir. 2019) (quoting Jarbough v.
Att’y Gen., 483 F.3d 184, 189 (3d Cir. 2007)). Thus we may not review the IJ’s findings
of fact that Gutierrez-Molina would likely not be harmed or the BIA’s determination that
there was no clear error.
Gutierrez-Molina’s only legal contention is that the Board failed to engage in the
Myrie two-step inquiry. But this clearly fails. The Board reviewed the IJ’s findings of
fact under a clearly erroneous standard of review, as is required, and “discern[ed] no clear
error.” App. 7. Gutierrez-Molina bears the burden to show both that he is likely to be
harmed and that the harm amounts to the legal definition of torture. As he did not meet
the factual burden needed, the second step of Myrie need not be reached.
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Thus we must deny the petition for review.
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