Ricardo Reyes v. Loretta Lynch ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1672
RICARDO JAVIER REYES,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: December 22, 2015 Decided: February 5, 2016
Before MOTZ, KEENAN, and HARRIS, Circuit Judges.
Petition dismissed by unpublished per curiam opinion.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, Lisa M. Arnold, Senior Litigation
Counsel, Scott M. Marconda, 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Unpublished opinions are not binding precedent in this circuit.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:
Ricardo Javier Reyes, a native and citizen of El Salvador,
petitions for review of an order of the Board of Immigration
Appeals dismissing his appeal from the immigration judge’s
denial of his request for deferral of removal under the
Convention Against Torture (CAT). For the reasons discussed
below, we dismiss the petition for review.
Pursuant to 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 who is
removable for having been convicted of certain enumerated
crimes, including an aggravated felony. Under § 1252(a)(2)(C),
we retain jurisdiction “to review factual determinations that
trigger the jurisdiction-stripping provision, such as whether
[Reyes] [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) (per curiam). Once we confirm these two factual
determinations, we may then only consider “constitutional claims
or questions of law.” 8 U.S.C. § 1252(a)(2)(D); see Turkson v.
Holder, 667 F.3d 523, 527 (4th Cir. 2012).
Reyes has conceded that he is a native and citizen of El
Salvador and does not contest that he has been convicted of a
criminal offense that qualifies as an aggravated felony. Upon
review, we hold that the lead argument advanced by Reyes is not
2
a sufficiently colorable legal question as to invoke this
court’s jurisdiction under § 1252(a)(2)(D). See, e.g., Jian Pan
v. Gonzales, 489 F.3d 80, 84 (1st Cir. 2007) (“To trigger our
jurisdiction, the putative constitutional or legal challenge
must be more than a disguised challenge to factual findings.”);
Arias v. U.S. Attorney Gen., 482 F.3d 1281, 1284 & n.2 (11th
Cir. 2007) (per curiam) (explaining that, for a claim to be
colorable, it “must have some possible validity” (internal
quotation marks omitted)). Nor do we have jurisdiction to
consider Reyes’ second argument in which Reyes seeks review of
the agency’s critical factual determination in this case. See
Hernandez-Nolasco v. Lynch, 807 F.3d 95, 99 (4th Cir. 2015)
(holding that we lacked jurisdiction to review petitioner’s
argument that the agency erroneously concluded “that he failed
to meet his evidentiary burden to establish that he qualifies
for deferral of removal under the CAT” because it raised “a
purely factual question”).
Accordingly, we dismiss the petition for review. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
PETITION DISMISSED
3