Rivas-Aponte v. Sessions

16-2655
Rivas-Aponte v. Sessions
BIA
Straus, IJ
A018 630 410
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 TO 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
25th day of June, two thousand eighteen.
Present:
PIERRE N. LEVAL,
GUIDO CALABRESI,
DEBRA ANN LIVINGSTON,
Circuit Judges.
_____________________________________
SANTIAGO DE JESUS RIVAS-APONTE,
Petitioner,
v. 16-2655-ag
JEFFERSON B. SESSIONS III, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
For Petitioner: Kai W. De Graaf, New York, NY.
For Respondent: Paul Fiorino, Senior Litigation Counsel, Office of
Immigration Litigation (Chad A. Readler, Acting
Assistant Attorney General, Douglas E. Ginsburg,
Assistant Director, on the brief), United States
Department of Justice, Washington, DC.
Petition for review of a June 28, 2016 Board of Immigration Appeals (“BIA”) decision
affirming an April 30, 2015 decision of an Immigration Judge (“IJ”) denying Rivas-Aponte’s
applications for asylum, withholding of removal, and Convention Against Torture (“CAT”) relief
and ordering his removal.
UPON DUE CONSIDERATION of this petition for review of a BIA decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review is DENIED.
Petitioner Santiago De Jesus Rivas-Aponte, a native and citizen of the Dominican
Republic, seeks review of a June 28, 2016 decision of the BIA affirming an April 30, 2015,
decision of an IJ denying Rivas-Aponte’s applications for asylum, withholding of removal, and
CAT relief and ordering his removal. In re Santiago De Jesus Rivas Aponte, No. A 018 630 410
(B.I.A. June 28, 2016), aff’g No. A 018 630 410 (Immig. Ct. Hartford Apr. 30, 2015). The
Government moves to dismiss the petition. We assume the parties’ familiarity with the underlying
facts and procedural history in this case.
We have reviewed the IJ’s decision as modified and supplemented by the BIA. See Wala
v. Mukasey, 511 F.3d 102, 105 (2d Cir. 2007); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d
520, 522 (2d Cir. 2005). Because Rivas-Aponte was ordered removed for an aggravated felony,
our review is limited to colorable constitutional claims and questions of law. See 8 U.S.C.
§ 1252(a)(2)(C), (D); Ortiz-Franco v. Holder, 782 F.3d 81, 91 (2d Cir. 2015). Rivas-Aponte argues
that the IJ was required, under the Fifth Amendment’s Due Process Clause, to assess whether
removal was a disproportionate penalty for his criminal conviction. But this argument is foreclosed
by Marin-Marin v. Sessions, 852 F.3d 192, 194–95 (2d Cir. 2017) (per curiam), which held that
removal is not subject to due process proportionality review. See id. at 194 (“[I]n general, when
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removal is predicated on a criminal act, ‘the alien is not being punished for that act (criminal
charges may be available for that separate purpose) but is merely being held to the terms under
which he was admitted.’” (quoting Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471,
491 (1999))). Because the sole argument that Rivas-Aponte raises here is foreclosed by our
precedent, we deny the petition for review.
Nonetheless, we decline to dismiss this case for lack of jurisdiction and so also DENY the
government’s motion to dismiss. Although “we lack jurisdiction to review any legal argument that
is 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), Rivas-Aponte’s argument is not so
insubstantial as to meet this standard. See Avendano-Espejo v. Dep’t of Homeland Sec., 448 F.3d
503, 505–06 (2d Cir. 2006) (explaining that we lack jurisdiction when petitioners “dress up”
challenges to “decision[s] firmly committed by statute to the discretion of the Attorney General
. . . with the language of due process” (internal citations omitted); see also Steel Co. v. Citizens for
a Better Env’t, 523 U.S. 83, 89 (1998) (“Dismissal for lack of subject-matter jurisdiction because
of the inadequacy of the federal claim is proper only when the claim is ‘so insubstantial,
implausible, foreclosed by prior decisions of [the Supreme] Court, or otherwise completely devoid
of merit as not to involve a federal controversy.” (quoting Oneida Indian Nation of N.Y. v. Cty. of
Oneida, 414 U.S. 661, 666 (1974) (emphasis added)).
For the foregoing reasons, the petition for review is DENIED, and the motion to dismiss
the petition is DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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