Etienne v. Holder

14-1136
Etienne v. Holder
BIA
Straus, IJ
A025 452 809
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
CORRECTED 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
29th day of April, two thousand fifteen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
REENA RAGGI,
DENNY CHIN,
Circuit Judges.
_____________________________________
JUNIOR ETIENNE,
Petitioner,
v. 14-1136
NAC
LORETTA E. LYNCH, U.S. ATTORNEY
GENERAL,
Respondent.1
_____________________________________
FOR PETITIONER: Gregory C. Osakwe, Hartford,
Connecticut.
1 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General
Loretta E. Lynch is automatically substituted for former Attorney General Eric
H. Holder, Jr.
FOR RESPONDENT: Joyce R. Branda, Acting Assistant
Attorney General; Michelle G. Latour,
Deputy Director; Victor M. Lawrence,
Senior Litigation Counsel, United
States Department of Justice, Civil
Division, Office of Immigration
Litigation, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review is
DISMISSED.
Petitioner Junior Etienne, a native and citizen of Haiti,
seeks review of a March 31, 2014, decision of the BIA affirming
a December 19, 2013, decision of an Immigration Judge (“IJ”)
denying Etiennes’s application for deferral of removal under
the Convention Against Torture (“CAT”). In re Junior Etienne,
No. A025 452 809 (B.I.A. Mar. 31, 2014), aff’g No. A025 452 809
(Immig. Ct. Hartford Dec. 19, 2013). We assume the parties’
familiarity with the underlying facts and procedural history
in this case.
Under the circumstances of this case, we review the IJ’s
decision as supplemented by the BIA’s decision. See Yan Chen
v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable
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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).
Under 8 U.S.C. § 1252(a)(2)(C) and (D), we lack
jurisdiction to review any final order of removal against an
alien who, like Etienne, is removable by reason of having
committed an aggravated felony unless the petition raises
“colorable constitutional claims or questions of law.”
Ortiz-Franco v. Holder, No. 13-3610, --- F.3d ---, 2015 WL
1449077, at *1 (2d Cir. Apr. 1, 2015).
Etienne asserts that the BIA violated due process by not
considering the evidence that he submitted on appeal. While
this is a constitutional claim, it is not colorable. The BIA
was not obligated to consider evidence submitted for the first
time on appeal. See De La Rosa v. Holder, 598 F.3d 103, 108
n.2 (2d Cir. 2010); 8 C.F.R. § 1003.1(d)(3)(iv). This is
particularly true where, as here, the evidence was immaterial
to whether Etienne would be tortured. Garcia-Villeda v.
Mukasey, 531 F.3d 141, 149 (2d Cir. 2008) (holding due process
violation requires showing “some cognizable prejudice”
(internal quotation marks omitted)).
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Etienne also asserts that the BIA applied an incorrect
legal standard. Whether the agency applied the correct legal
standard is a reviewable question of law, see Acharya v. Holder,
761 F.3d 289, 299 n.4 (2d Cir. 2014); however, this claim is
also not colorable. The BIA applied the correct standard:
that Etienne had to show that he would “more likely than not”
be tortured in Haiti “by or at the instigation of or with the
consent or acquiescence of a public official or other person
acting in an official capacity.” 8 C.F.R. §§ 1208.17(a),
1208.18(a)(1).
For the foregoing reasons, the petition for review is
DISMISSED. 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 DENIED 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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