Sealed v. Sealed ( 2022 )

United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
No. 21-60612 FILED
Summary Calendar November 10, 2022
Lyle W. Cayce
Clerk
Sealed Petitioner,
Petitioner,
versus
Sealed Respondent,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
Agency No. A201 166 300
Before Stewart, Duncan, and Wilson, Circuit Judges.
Per Curiam:*
Petitioner, a native and citizen of Mexico, petitions for review of the
order by the Board of Immigration Appeals (BIA) dismissing an appeal from
an order of the immigration judge (IJ) denying him deferral of removal under
the Convention Against Torture (CAT), 8 C.F.R. § 1208.17.
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
No. 21-60612
We review the BIA’s decision and will consider the IJ’s underlying
decision only if it impacted the BIA’s decision, as it did here. See Sharma v.
Holder, 729 F.3d 407, 411 (5th Cir. 2013). Findings of fact, including the
denial of CAT protection, are reviewed under the substantial evidence
standard. Chen v. Gonzales, 470 F.3d 1131, 1134 (5th Cir. 2006). Under the
substantial evidence standard, we may not reverse a factual finding unless the
evidence “compels” such a reversal—i.e., the evidence must be “so
compelling that no reasonable factfinder could reach a contrary conclusion.”
Id. Conclusions of law, including whether we have jurisdiction, are reviewed
de novo. Arulnanthy v. Garland, 17 F.4th 586, 592 (5th Cir. 2021).
Although Petitioner has already been removed to Mexico, his claim is
not moot because he faces an automatic period of inadmissibility following
his removal, which is a collateral legal consequence. See id.; 8 U.S.C.
§ 1182(a)(9)(A). Thus, we have jurisdiction to hear Petitioner’s case. See
FDIC v. Belcher, 978 F.3d 959, 961 n.1 (5th Cir. 2020) (stating that mootness
is a jurisdictional issue). Additionally, Petitioner is incorrect that, pursuant
to 8 U.S.C. § 1252(a)(2)(C), we lack jurisdiction to review questions of fact
because of his criminal conviction. See Nasrallah v. Barr, 140 S. Ct. 1683,
1690 (2020) (holding that § 1252(a)(2)(C) does not “preclude judicial review
of factual challenges to CAT orders”).
Petitioner has failed to establish that the record compels a finding
contrary to that of the BIA—that he would not be tortured by or with the
acquiescence of the Mexican government upon removal. See Chen, 470 F.3d
at 1134; Tamara-Gomez v. Gonzales, 447 F.3d 343, 351 (5th Cir. 2006)
(holding that “neither the failure to apprehend the persons threatening the
alien, nor the lack of financial resources to eradicate the threat or risk of
torture constitute sufficient state action for purposes” of CAT). Because he
cannot satisfy the state action requirement of his CAT claim, we need not
reach his other issues on review. See INS v. Bagamasbad, 429 U.S. 24, 25
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No. 21-60612
(1976) (per curiam) (“As a general rule courts and agencies are not required
to make findings on issues the decision of which is unnecessary to the results
they reach.”).
Accordingly, Petitioner’s petition for review is DENIED.
3