Francisco Pineda Torres v. Loretta Lynch , 624 F. App'x 82 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1501
FRANCISCO ARTURO PINEDA TORRES,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: November 5, 2015 Decided: December 4, 2015
Before DUNCAN and FLOYD, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Petition dismissed by unpublished per curiam opinion.
Randall L. Johnson, JOHNSON & ASSOCIATES, P.C., Arlington,
Virginia, for Petitioner. Benjamin C. Mizer, Principal Deputy
Assistant Attorney General, Erica B. Miles, Senior Litigation
Counsel, David Schor, Office of Immigration Litigation, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Francisco Arturo Pineda Torres, a native and citizen of El
Salvador, petitions for review of the Board of Immigration
Appeals’ order adopting and affirming the immigration judge’s
decision finding him removable for having been convicted of an
aggravated felony and ineligible for protection under the
Convention Against Torture. We dismiss the petition for review.
Under 8 U.S.C. § 1252(a)(2)(C) (2012), we lack
jurisdiction, except as provided in 8 U.S.C. § 1252(a)(2)(D)
(2012), to review the final order of removal of an alien
convicted of certain enumerated crimes, including an aggravated
felony. We retain jurisdiction “only to review factual
determinations that trigger the jurisdiction-stripping
provision, such as whether [Pineda Torres] [i]s an alien and
whether []he has been convicted of an aggravated felony.”
Ramtulla v. Ashcroft, 301 F.3d 202, 203 (4th Cir. 2002). Once
we confirm these two factual determinations, then, under 8
U.S.C. § 1252(a)(2)(C), (D), we may only consider
“constitutional claims or questions of law.” 8 U.S.C.
§ 1252(a)(2)(D); see Turkson v. Holder, 667 F.3d 523, 526-27
(4th Cir. 2012). Pineda Torres concedes that he is a native and
citizen of El Salvador and that he was convicted of an
aggravated felony. Therefore, we may only consider
constitutional claims or questions of law.
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To qualify for protection under the CAT, a petitioner bears
the burden of showing that “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) (2015). To state a prima
facie case for relief under the CAT, a petitioner must show that
he or she will be subject to “severe pain or suffering, whether
physical or mental . . . by or at the instigation of or with the
consent or acquiescence of a public official or other person
acting in an official capacity.” 8 C.F.R. § 1208.18(a)(1)
(2015); see Saintha v. Mukasey, 516 F.3d 243, 246 & n.2 (4th
Cir. 2008). The applicant need not prove the torture would be
inflicted on account of a protected ground. Dankam v. Gonzales,
495 F.3d 113, 116 (4th Cir. 2011).
Whether Pineda Torres established that an El Salvadoran
government official would instigate or acquiesce in his torture
is a factual finding over which we do not have jurisdiction.
Saintha, 516 F.3d at 249-50 (whether government acquiesced in
torture is a factual finding reviewed for substantial evidence).
To the extent that Pineda Torres argues that the IJ and the
Board used an incorrect legal standard, we are without
jurisdiction to review this claim because Pineda Torres did not
raise the claim on appeal to the Board. 8 U.S.C. § 1252(d)(1)
(2012); Tiscareno-Garcia v. Holder, 780 F.3d 205, 210 (4th Cir.
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2015) (holding that court is without jurisdiction to review
claim that is unexhausted).
Accordingly, we deny leave to proceed in forma pauperis and
dismiss the petition for review. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before this court and argument would not aid
the decisional process.
PETITION DISMISSED
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