Quijano Melgar v. Holder

12-950
Quijano Melgar v. Holder
BIA
Sagerman, IJ
A095 041 943
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
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 7th day of August, two thousand thirteen.
PRESENT:
JON O. NEWMAN,
GERARD E. LYNCH,
SUSAN L. CARNEY,
Circuit Judges.
_____________________________________
BORIS EDUARDO QUIJANO MELGAR,
Petitioner,
v. 12-950
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Linda Kenepaske, New York, NY.
FOR RESPONDENT: Stuart F. Delery, Acting Assistant Attorney
General; Stephen J. Flynn, Assistant Director;
James A. Hurley, Attorney, Office of Immigration
Litigation, Civil Division, 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.
Petitioner Boris Eduardo Quijano Melgar, a native and citizen of El Salvador,
seeks review of a February 10, 2012 order of the BIA affirming the September 19, 2011
decision of Immigration Judge (“IJ”) Roger F. Sagerman, denying, inter alia, his
application for relief under the Convention Against Torture (“CAT”). In re Boris
Eduardo Quijano Melgar, No. A095 041 943 (B.I.A. Feb. 10, 2012), aff’g No. A095 041
943 (Immig. Ct. New York, Sept. 19, 2011). We assume the parties’ familiarity with the
underlying facts and procedural history of the case.
Under the circumstances of this case, we have reviewed the IJ’s decision as
supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).
“[N]o court shall have jurisdiction to review any final order of removal against an alien
who is removable by reason of having committed a criminal offense covered in [INA]
section 212(a)(2),” 8 U.S.C. § 1252(a)(2)(C), which includes crimes involving moral
turpitude. Notwithstanding that provision, we retain jurisdiction to review petitions
raising “constitutional claims or questions of law,” 8 U.S.C. § 1252(a)(2)(D), to the extent
that such claims are not “so insubstantial and frivolous as to be inadequate to invoke
federal-question jurisdiction,” Barco-Sandoval v. Gonzales, 516 F.3d 35, 40 (2d Cir.
2008) (citations omitted).
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Although we have repeatedly assumed that § 1252(a)(2)(C)’s jurisdictional bar
applies to claims of deferral of removal under the CAT, see, e.g., Savchuk v. Mukasey,
518 F.3d 119, 123 (2d Cir. 2008); Pierre v. Gonzales, 502 F.3d 109, 113 (2d Cir. 2007);
Maiwand v. Gonzales, 501 F.3d 101, 105 (2d Cir. 2007), we have never expressly so held,
see De La Rosa v. Holder, 598 F.3d 103, 107 (2d Cir. 2010), and two of our sister circuits
have held to the contrary, see Wanjiru v. Holder, 705 F.3d 258, 263 (7th Cir. 2013);
Lenus-Galvan v. Mukasey, 518 F.3d 1081, 1084 (9th Cir. 2008). We need not resolve
that jurisdictional issue, for we may exercise hypothetical jurisdiction where, as here, the
jurisdictional issues goes to statutory and not constitutional jurisdiction, and where it is
plain that the petitioner’s objections to the agency’s findings are meritless. See
Ivanishvili v. United States Dept’ of Justice, 433 F.3d 332, 338 n.2 (2d Cir. 2006); see
also 8 C.F.R. § 1208.17; Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.2d 156, 159 (2d
Cir. 2005).
CAT relief is only available where government officials perform the anticipated
torture or “know of or remain willfully blind to an act and thereafter breach their legal
responsibility to prevent it.” Khouzam v. Ashcroft, 361 F.3d 161, 171 (2d Cir. 2004).
Here, the agency concluded that any harm Quijano Melgar might suffer at the hands of
Salvadoran gang members would not occur with the knowledge or willful blindness of the
government. Although the Salvadoran government may not be entirely effective in
controlling gang violence, the agency’s conclusion that the government would not be
willfully blind to harm caused by gang members is supported by substantial evidence
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showing government efforts to target gang members and prevent gang violence, including
laws criminalizing membership in gangs. The agency’s finding that Quijano Melgar did
not demonstrate that either the government or paramilitary groups indiscriminately harm
suspected gang members or individuals with tattoos, or that any harm inflicted upon
suspected gang members by the government would constitute torture, is also supported by
substantial evidence. It was within the agency’s discretion to give more weight to U.S.
State Department reports than to the testimony of petitioner’s expert witness on
Salvadoran gangs, which was based almost entirely on anecdotal material. See Hui Lin
Huang v. Holder, 677 F.3d 130, 138 (2d Cir. 2012).
Quijano Melgar also argues that the agency erred in concluding that he had not
shown it was more likely than not that he would be tortured in El Salvador because it
failed to consider his risk of torture in the aggregate. That argument is meritless, as the
BIA merely summarized the factual findings of the IJ, who explicitly considered “the
totality of the documentary evidence of record,” and reasonably concluded that: (1) the
evidence did not show that the Salvadoran government engaged in torture of tattooed
individuals; (2) paramilitary groups were not engaged in extrajudicial torture or killings
generally; and (3) to the extent Quijano Melgar might be tortured by gang members, it
would not be with the acquiescence of the government.
For the foregoing reasons, the petition for review is DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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