Keyla Perez-Quiroz v. Eric Holder, Jr. , 532 F. App'x 682 ( 2013 )

FILED
NOT FOR PUBLICATION JUN 26 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
KEYLA MILAGROS PEREZ-QUIROZ, No. 11-72365
Petitioner, Agency No. A023-729-873
v.
MEMORANDUM *
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 13, 2013 **
San Francisco, California
Before: TASHIMA and BYBEE, Circuit Judges, and WOOD, Senior District
Judge.***
Keyla Milagros Perez-Quiroz (“Petitioner”) is a natural born citizen of
Nicaragua who entered the United States illegally as a child. Petitioner committed
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
***
The Honorable Kimba M. Wood, Senior United States District Judge
for the Southern District of New York, sitting by designation.
two felonies and was removed to Nicaragua in 2002. While in Nicaragua from
2002 to 2005, Petitioner says that she was kidnapped, mistreated, and harassed by
Sandinistas because her family are well-known members of an opposition party.
After her kidnapping, Petitioner relocated within Nicaragua and later returned
voluntarily to the town of her kidnapping. She also traveled to several Central
American countries and then returned voluntarily to Nicaragua. Petitioner illegally
reentered the United States in 2005, committed a third felony, and in 2009 became
subject to reinstatement of her prior removal order. She sought various forms of
relief from removal. In 2009, an immigration judge (“IJ”) granted her deferral of
removal under the Convention Against Torture (“CAT”). In 2010, the Bureau of
Immigration Appeals (“BIA”) vacated the IJ’s decision and remanded for further
fact-finding. Petitioner sought review of the 2010 BIA decision in this Court, but
her petition was dismissed for lack of jurisdiction. Perez-Quiroz v. Holder, No.
10-71552 (9th Cir. Aug. 9, 2010).
Following remand, the IJ denied Petitioner’s request for deferral under the
CAT and held that (1) Petitioner’s claim failed because it relied on her testimony,
and Petitioner was deemed not credible; and (2) alternatively, even if deemed
credible, Petitioner did not qualify for deferral under the CAT because she failed to
show past torture, she did not establish that internal relocation within Nicaragua
2
was impossible, country conditions did not disclose a clear probability of future
torture, and Petitioner’s voluntary returns to Nicaragua and the continued presence
of family members in Nicaragua undermined her claim. The IJ also issued an
interim decision denying Petitioner’s motion for the issuance of a subpoena of
medical records indicating that she suffers from post-traumatic stress disorder as a
result of her kidnapping. On appeal, the BIA relied upon the same alternative
grounds as the IJ and dismissed Petitioner’s appeal of the decision denying CAT
relief. The BIA also dismissed Petitioner’s appeal of the IJ’s interim decision
denying her motion for a subpoena. Petitioner challenges both of the recent BIA
decisions and again seeks review of the 2010 BIA decision.
We lack jurisdiction to review the 2010 BIA decision. Our jurisdiction is
limited to final orders of deportation or removal, and the 2010 BIA decision was
not a final order. See 8 U.S.C. §§ 1101(a)(47), 1252(a), 1252(b)(9); Galindo-
Romero v. Holder, 640 F.3d 873, 877 (9th Cir. 2011). Indeed, we have already
dismissed for lack of jurisdiction Petitioner’s prior petition challenging the 2010
BIA decision.
We also lack jurisdiction to review the denial of Petitioner’s motion for
issuance of a subpoena of her mental health records. Petitioner is “an alien who is
removable by reason of having committed a criminal offense,” and as such, the
3
jurisdiction-stripping provision of § 1252(a)(2)(C) bars review of her claim
relating to the subpoena. Cf. Eneh v. Holder, 601 F.3d 943, 946 (9th Cir. 2010)
(explaining that we retain jurisdiction to review a deferral-of-removal claim under
the CAT despite § 1252(a)(2)(C) because a denial of CAT deferral is “always a
decision on the merits”). Although we can review “constitutional claims or
questions of law,” § 1252(a)(2)(D), Petitioner’s claim is neither constitutional nor
legal; it is a straightforward allegation of abused discretion over which we lack
jurisdiction.1 See Kaur v. INS, 237 F.3d 1098, 1099 (9th Cir. 2001) (“We review
for abuse of discretion an IJ’s decision not to issue a subpoena for the production
of documentary evidence.”), amended on denial of reh’g by 249 F.3d 830 (9th Cir.
2001).
With regard to the BIA’s determination that Petitioner is not entitled to
deferral of removal under the CAT, we have jurisdiction under 8 U.S.C.
1
Petitioner makes a single passing reference to denial of due process in
the section header of her brief, but she presents no due process arguments.
“Although we retain jurisdiction to review due process challenges, a petitioner may
not create the jurisdiction that Congress chose to remove simply by cloaking an
abuse of discretion argument in constitutional garb.” Torres-Aguilar v. INS, 246
F.3d 1267, 1271 (9th Cir. 2001).
4
§ 1252(a)(1), and we deny the petition for review.2 “To receive relief under CAT,
Petitioner has the burden of showing that [s]he ‘is more likely than not to be
tortured in the country of removal.’” Zheng v. Holder, 644 F.3d 829, 835 (9th Cir.
2011) (quoting 8 C.F.R. § 1208.16(c)(4)). Petitioner does not challenge the BIA’s
determination that she failed to meet that burden, and Petitioner’s failure to meet
the burden of showing future torture is an independent ground upon which both the
IJ and BIA denied her request for deferral of removal. Accordingly, Petitioner has
waived review of the denial of her claim for deferral of removal under the CAT.3
DISMISSED in part and DENIED in part.
2
Because the BIA reviewed de novo the IJ’s determination that
Petitioner did not meet her burden of proof on future torture, we review the BIA’s
decision on this issue. See Corpuz v. Holder, 697 F.3d 807, 810-811 (9th Cir.
2012).
3
In light of this holding, we need not and do not review the alternative
adverse-credibility determination.
5