Lusanga V.Lynch

12-3776
Lusanga v.Lynch
BIA
Straus, IJ
A072 484 945
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 30th day of December, two thousand fifteen.
PRESENT:
JON O. NEWMAN,
RALPH K. WINTER,
PETER W. HALL,
Circuit Judges.
_____________________________________
LUSANGA GRACIAS LUSANGA, AKA EFILE
MASANKA, AKA LUSANGA LUSANGA GRACIA,
Petitioner,
v. 12-3776
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Elyssa N. Williams, Formica
Williams, P.C., New Haven, CT.
FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
General; Nancy E. Friedman, Senior
Litigation Counsel; Brooke M.
Maurer, Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED that the petition for
review is DENIED.
Lusanga Gracias Lusanga, a native and citizen of the
Democratic Republic of the Congo (“DRC”), seeks review of a
January 13, 2012, decision of the BIA (reissued on August 31,
2012) affirming an Immigration Judge’s (“IJ”) September 1,
2011, denial of adjustment of status and deferral of removal
under the Convention Against Torture (“CAT”). In re Lusanga
Gracias Lusanga, No. A072 484 945 (B.I.A. Jan. 13, 2012),
aff’g No. A072 484 945 (Immig. Ct. Hartford Sept. 1, 2011).
We assume the parties’ familiarity with the underlying facts
and procedural history of this case.
Under the circumstances of this case, we have reviewed
both the BIA’s and IJ’s decisions. See Zaman v. Mukasey, 514
F.3d 233, 237 (2d Cir. 2008) (per curiam). The applicable
standards of review are well established. See 8 U.S.C.
§ 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d
Cir. 2009).
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Our jurisdiction is limited to review of constitutional
claims and questions of law. 8 U.S.C. § 1252(a)(2)(B)
(limiting review of denials of discretionary waivers), (C)
(precluding review of final orders of removal based on
aggravated felony convictions), (D) (restoring jurisdiction
over “constitutional claims or questions of law”); Ortiz-
Franco v. Holder, 782 F.3d 81, 85 (2d Cir. 2015) (holding that
jurisdictional bar of § 1252(a)(2)(C) applies equally to CAT
claims).
Here, we lack jurisdiction to review the denial of a
waiver because Lusanga does not raise a reviewable
constitutional claim or question of law. Lusanga argues only
that the IJ failed to consider all of the positive factors
supporting a grant of the waiver-–including his fear of
returning to the DRC and the hardship of living in a country
that has problems with violence and human rights abuses. This
argument does not present a constitutional claim or question
of law. The record shows that the IJ weighed all the factors.
Accordingly, this challenge to the weight of the evidence
merely “disputes the correctness of an IJ’s fact-finding or
the wisdom of his exercise of discretion.” Xiao Ji Chen v.
U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d Cir. 2006).
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Lusanga’s challenges to the denial of CAT relief fail,
either on the merits, or as factual challenges for which there
is no jurisdiction. First, Lusanga raises a question of law
as to whether the agency erred by requiring him to show he
would be tortured based on a protected ground, a requirement
only relevant to asylum and withholding of removal. However,
contrary to Lusanga’s argument, the agency did not require him
to make such a showing; rather, the IJ applied the correct
standard and determined “there’s simply not enough evidence
based on this record that the threat of torture rises to the
level of more likely than not.” Certified Administrative
Record at 47; see 8 C.F.R. §§ 1208.16(c)(2), 1208.17(a);
Khouzam v. Ashcroft, 361 F.3d 161, 168 (2d Cir. 2004).
The agency’s discussion of Lusanga’s political
affiliations was the product of Lusanga’s argument that his
family was forced to flee the DRC in the early 1990s because
of his father’s political allegiances. Thus, the IJ simply
analyzed whether Lusanga would be tortured on the basis he
suggested, his father’s former political ties. See Islami v.
Gonzales, 412 F.3d 391, 396 (2d Cir. 2005), overruled in part
on other grounds by Shi Liang Lin v. U.S. Dep’t of Justice,
494 F.3d 296, 305 (2d Cir. 2007).
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Second, Lusanga argues that the IJ misconstrued and
misinterpreted the evidence in concluding that there was
insufficient evidence of torture in the DRC. As this is
neither a question of law nor a constitutional claim, we lack
jurisdiction to consider it. Ortiz-Franco, 782 F.3d at 86.
Lusanga also seems to raise, indirectly, a claim that the
IJ prevented him from testifying fully based on two incidents
during the merits hearing. This is essentially a due process
claim. See Burger v. Gonzales, 498 F.3d 131, 134 (2d Cir.
2007). Lusanga cites one incident where the IJ asked him
whether the Mobutu government was overthrown in 1997; Lusanga
answered that it was, and as he began to further state his
claims, the IJ cut him off and told him to limit himself to
the question. The second incident involved testimony about
his fear of returning to the DRC, during which he began to
identify his country conditions evidence. The IJ interrupted,
stating he would read the documents. The IJ then provided a
summary of what he understood Lusanga’s fear to be premised
upon, and Lusanga confirmed that the IJ correctly described
the basis for his fear. These two isolated incidents do not
amount to a due process violation. Other portions of the
testimony, specifically his direct testimony, show that
Lusanga had sufficient opportunity to develop his claims.
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For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of removal
that the Court previously granted in this petition is VACATED,
and any pending motion for a stay of removal in this petition
is DISMISSED as moot. Any pending request for oral argument
in this petition is DENIED in accordance with Federal Rule of
Appellate Procedure 34(a)(2), and Second Circuit Local Rule
34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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