Jose Diaz Hernandez v. Attorney General United States , 677 F. App'x 808 ( 2017 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 16-2682
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JOSE RAUL DIAZ HERNANDEZ,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
_______________
On Petition for Review of an Order of the
United States Department of Justice
Board of Immigration Appeals
(BIA 1:A201-245-671)
Immigration Judge: Hon. Annie S. Garcy
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Submitted Under Third Circuit L.A.R. 34.1(a)
January 12, 2017
Before: SMITH, Chief Judge, JORDAN, and SHWARTZ, Circuit Judges.
(Opinion Filed: February 1, 2017)
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OPINION
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
This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
JORDAN, Circuit Judge.
Jose Raul Diaz Hernandez, a citizen of Mexico, is subject to an order of removal.
He filed an application for asylum or withholding of removal under the Immigration and
Nationality Act (“INA”), and also for relief under the Convention Against Torture
(“CAT”). Because the Immigration Judge (“IJ”) determined that Hernandez had
committed a “particularly serious crime,” he was not eligible for withholding of removal.
The IJ also found that Hernandez’s CAT claim was speculative and unsupported by
objective evidence. The Board of Immigration Appeals (“BIA”) affirmed the IJ’s order
of removal, and Hernandez now petitions for review. We will deny the petition.
I. BACKGROUND
Hernandez illegally entered the United States in 1995, when he was fifteen, and
has resided here since. He has a son who was born in 2007 and lives with him. In June
2011, Hernandez was arrested after selling five Oxycodone pills to an acquaintance. He
was charged in New Jersey state court with distributing a controlled dangerous substance,
in violation of N.J. Stat. Ann. § 2C:35-5(b)(5). Because his son was allegedly present
during the attempted sale, Hernandez was also charged with committing an act of child
neglect, in violation of N.J. Stat. Ann. § 9:6-3, though that charge was later dropped.
He pled guilty to the distribution offense and was sentenced to 364 days in jail.
The United States Department of Homeland Security commenced removal
proceedings and filed a Notice to Appear setting forth as the sole basis for removal that
Hernandez was present in the country illegally, in violation of 8 U.S.C.
§ 1182(a)(6)(A)(i). Hernandez admitted that he was in the country illegally, but he filed
2
an application for asylum or withholding of removal under the INA and also for deferral
of removal under the CAT.
In his application, Hernandez argued that, if forced to return to Mexico, he would
be recruited by drug cartels and kidnapped or tortured if he did not join. In support of
that claim, he explained that his father had been kidnapped and ransomed by corrupt
Mexican police officers and that a cousin had been kidnapped and still remains missing.
An expert on drug trafficking in Mexico also claimed in an affidavit that Hernandez was
at an increased risk of being forcibly recruited by crime groups because of his criminal
history and his experience living in the United States. Hernandez said that since he had
acquaintances and family members in Mexico who knew about his arrest, his criminal
history would be common knowledge for local gangs. Finally, Hernandez relied on what
he characterized as a general climate of corruption in Mexico, and he submitted a State
Department Country Report describing pervasive kidnapping throughout the country. He
also emphasized that his hometown of Jilotepec has one of the highest rates of
kidnapping in the country.
Hernandez conceded that he was not eligible for asylum because the one-year
statutory deadline had passed and his criminal conviction barred him from eligibility.
The IJ then concluded that Hernandez had committed a “particularly serious” offense and
therefore did not qualify for withholding of removal. In reaching that conclusion, the IJ
noted that there is a presumption that a drug trafficking offense is particularly serious, so
that the question was whether Hernandez had overcome that presumption. She explained
3
that, because Hernandez actually sold the Oxycodone, his involvement in the crime was
not “peripheral” and therefore the presumption remained intact. (App. at 57, 151.)
Finally, the IJ denied Hernandez’s request for relief under the CAT. She
concluded that his claim was “speculative and unsupported by objective evidence to
support his fears.” (App. at 18.) In particular, she noted that Hernandez had engaged in a
single drug transaction and had no gang connections while living in the United States.
Likewise, Hernandez failed to show that any of his family members had a connection to
gangs or had been subjected to torture. The IJ therefore held that Hernandez had not
proven that his fears were more likely justified than not.
Hernandez then appealed to the BIA. It, however, agreed with the IJ that
Hernandez “was not merely peripherally involved in the criminal activity” and that
Hernandez had committed a “particularly serious crime.” (App. at 6.) And, it found “no
reason to disturb the Immigration Judge’s determination that [Hernandez] did not
demonstrate that it is more likely than not that he would suffer abuse amounting to torture
… if he were removed to Mexico.” (App. at 6-7.) This petition for review followed.
II. DISCUSSION1
Hernandez argues that the BIA erred when it affirmed the IJ’s ruling that his crime
was “particularly serious” and found that he did not qualify for relief under the CAT.
Because the BIA issued its own decision on the merits, we review that decision rather
than the IJ’s. Kaplun v. Att’y Gen. of U.S., 602 F.3d 260, 265 (3d Cir. 2010). We may
1
The BIA had jurisdiction to review the IJ’s final order of removal under 8 C.F.R.
§ 1003.1(b)(3). Our jurisdiction is pursuant to 8 U.S.C. § 1252(a)(1).
4
nevertheless consider the IJ’s reasoning to the extent that the BIA relied on it. Voci v.
Gonzales, 409 F.3d 607, 612 (3d Cir. 2005).
A. Hernandez’s Crime Was Particularly Serious
The INA declares that an alien who “[has] been convicted by a final judgment of a
particularly serious crime is a danger to the community of the United States” and
therefore is not eligible for withholding of removal. 8 U.S.C. § 1231(b)(3)(B)(ii). If an
alien has committed an aggravated felony and been sentenced to an aggregate prison term
of 5 years or more, then the alien is categorically ineligible for withholding. Id.;
Matter of Y–L–, 23 I. & N. Dec. 270, 273 (Op. Att’y Gen. 2002) (explaining that “ aliens
convicted of aggravated felonies and sentenced to at least five years of imprisonment
are automatically deemed to have committed a ‘particularly serious crime’”). Outside of
that categorical prohibition, which is inapplicable here,2 the INA grants broad discretion
to the Attorney General “to decide whether an alien committed a particularly serious
crime.”3 Denis v. Att’y Gen. of U.S., 633 F.3d 201, 214 (3d Cir. 2011) (citing Chong v.
Dist. Dir., INS, 264 F.3d 378, 387 (3d Cir. 2001) (further citations omitted). We are thus
obligated to accord a degree of deference to the BIA’s determination of what constitutes a
“particularly serious crime.” Chong, 264 F.3d at 387.
2
Hernandez was sentenced to 364 days imprisonment, not five or more years.
3
However, the discretion granted to the Attorney General does not take away our
jurisdiction to review the BIA’s decision. See Alaka v. Att’y Gen. of the U.S., 456 F.3d
88, 101-102 (3d Cir. 2006) (concluding that the grant of discretion was “insufficient to
pull the ‘particularly serious crime’ determination out from the broad class of reviewable
decisions that require the application of law to fact into the narrower class of decisions
where judicial review is precluded”).
5
Under existing precedent, the BIA rightly concluded that Hernandez’s drug
offense was a “particularly serious crime.” In 2002, the Attorney General declared that
outside of “the very rare case where an alien may be able to demonstrate extraordinary
and compelling circumstances that justify treating a particular drug trafficking crime as
falling short[,]” all drug trafficking offenses, which are by definition aggravated
felonies,4 should be presumed to be “particularly serious crime[s].” Matter of Y–L–, 23 I.
& N. Dec. at 275-76. The Attorney General set forth six factors that must exist before an
IJ can even consider whether “unusual circumstances” justify a departure from the
presumption:
(1) a very small quantity of controlled substance; (2) a very modest amount
of money paid for the drugs in the offending transaction; (3) merely
peripheral involvement by the alien in the criminal activity, transaction, or
conspiracy; (4) the absence of any violence or threat of violence, implicit or
otherwise, associated with the offense; (5) the absence of any organized
crime or terrorist organization involvement, direct or indirect, in relation to
the offending activity; and (6) the absence of any adverse or harmful effect
of the activity or transaction on juveniles.
Id. at 276-77.
Hernandez does not challenge the authority of the Attorney General to establish
the presumption. He also does not challenge the BIA’s conclusion that his conviction
constitutes an aggravated felony. Instead, he simply argues that the BIA improperly
assessed the factors in his case. We disagree.
The BIA agreed with the IJ that since Hernandez was the one who acquired and
sold the drugs, “he was not merely peripherally involved in the criminal activity.” (App.
4
See 8 U.S.C. § 1101 (a)(43)(B) (defining “illicit trafficking in a controlled
substance … including a drug trafficking crime” as an aggravated felony)
6
at 6.) We see no reason to disturb that conclusion. Hernandez claims that he was simply
acting at the behest of an acquaintance and therefore had peripheral involvement. But,
for the reasons expressed by the BIA, his involvement can hardly be said to be so
minimal. Even though Hernandez satisfied most or all of the other Y–L factors,5 he was
more than “peripherally involved in the criminal activity,” and he therefore did not
qualify for a departure from the presumption that his crime was a “particularly serious”
one.
B. Hernandez Did Not Qualify for Relief Under the CAT
Hernandez also argues that the BIA erred in concluding that he did not qualify for
relief under the CAT. In particular, he challenges the BIA’s determination that he was
unlikely to suffer torture upon returning to Mexico. In order to establish eligibility for
relief under the CAT, an alien must demonstrate that it is more likely than not that he
would be subject to torture. Sevoian v. Ashcroft, 290 F.3d 166, 175 (3d Cir. 2002).
Whether an individual qualifies for relief “turn[s] on two questions: ‘(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?’” Green v. Att’y Gen. of U.S., 694 F.3d 503, 507-08 (3d Cir.
2012) (quoting Kaplun, 602 F.3d at 271). In a case like this, in which the ground for
removal is not the criminal record of the petitioner, we will only “reverse the BIA's
5
The IJ also considered whether Hernandez’s conduct had harmed his son, a
minor. Hernandez claimed that his son was with a babysitter when Hernandez sold the
pills, and aside from the dropped charge for child abuse, there is no other evidence in the
record suggesting that Hernandez’s son was present. Neither the IJ nor the BIA seemed
to rely on this factor, and we do not consider it further. See Kayembe v. Ashcroft, 334
F.3d 231, 234-35 (3d Cir. 2003) (emphasizing that we only review BIA decisions on the
grounds that the BIA considered in reaching its decision).
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determination if the evidence compels a finding that it is more likely than not that the
petitioner will be tortured if removed.” Kang v. Attorney Gen. of U.S., 611 F.3d 157, 164
(3d Cir. 2010).6
The IJ undertook a thorough consideration of the record and concluded that, while
there was general evidence of state-tolerated torture in Mexico, Hernandez did not
provide any evidence that he “would stand out, other than perhaps as a deportee from the
United States, which is not an uncommon status in Mexico.”7 (App. at 18.) As a result,
the IJ ruled that Hernandez had not met his burden to show that he would more likely
than not be tortured in Mexico. The BIA affirmed, and we discern nothing that would
compel a contrary conclusion.
III. CONCLUSION
For the foregoing reasons, we will deny the petition for review.
6
Congress has restricted our jurisdiction to review factual findings when an alien
is removable “by reason of having committed [certain] criminal offense[s],” including a
drug crime such as Hernandez’s. 8 U.S.C. § 1252(a)(2)(C). Our authority to consider the
factual record related to the BIA’s determination that Hernandez was ineligible for relief
under the CAT might therefore have been in doubt had Hernandez’s crime been the basis
for his removal. However, the Government did not rely on Hernandez’s “commi[ssion]
of a criminal offense” as a basis for removal. 8 U.S.C. § 1252(a)(2)(C). Instead, it relied
solely on Hernandez’s unlawful presence in the United States. Accordingly, the
jurisdiction stripping provision does not apply, see McAllister v. Attorney Gen. of U.S.,
444 F.3d 178, 184 (3d Cir. 2006) (“[W]e read the jurisdictional bar of subsection (C) to
apply when the actual basis for the final order of removal was the alien’s commission of
one of the enumerated offenses), and Kang provides the appropriate standard of review.
7
Because the IJ thoroughly considered all of the evidence that was submitted, we
also reject Hernandez’s argument that the IJ and BIA committed legal error by ignoring
relevant evidence in the record. See Green v. Attorney Gen. of U.S., 694 F.3d 503, 508
(3d Cir. 2012) (noting that a similar argument “fail[ed] because [the petitioner] never
identifies any evidence that was overlooked”).
8