Grajales v. Holder

09-4739-ag
Grajales v. Holder
BIA
A012 870 832
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 29 th day of October, two thousand ten.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 ROBERT D. SACK,
10 RICHARD C. WESLEY,
11 Circuit Judges.
12 _____________________________________
13
14 Maria Aurora Rocha Grajales, also
15 known as Maria La Torre,
16 Petitioner,
17
18 v. 09-4739-ag
19 NAC
20 ERIC H. HOLDER, JR., UNITED STATES
21 ATTORNEY GENERAL,
22 Respondent.
23 _____________________________________
24
25 FOR PETITIONER: H. Raymond Fasano, New York, New
26 York
2728 FOR RESPONDENT: Tony West, Assistant Attorney
29 General; Mark C. Walters, Senior
30 Litigation Counsel, Glen T. Jaeger,
1 Trial Attorney, Office of
2 Immigration Litigation, Civil
3 Division, United States Department
4 of Justice, Washington, D.C.
5
6 UPON DUE CONSIDERATION of this petition for review of a
7 decision of the Board of Immigration Appeals (“BIA”), it is
8 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
9 review is DENIED in part and DISMISSED in part.
10 Maria Aurora Rocha Grajales, a native and citizen of
11 Colombia, seeks review of a November 9, 2009, order of the
12 BIA denying her motion to reopen. In re Maria Aurora Rocha
13 Grajales, No. A012 870 832 (B.I.A. Nov. 9, 2009). We assume
14 the parties’ familiarity with the underlying facts and
15 procedural history of this case.
16 We lack jurisdiction to review a final order of removal
17 where, as here, the order results from convictions of two or
18 more crimes involving moral turpitude, unless the petition
19 raises “constitutional claims or questions of law.” See
20 8 U.S.C. § 1252(a)(2)(C), (D); Dulal-Whiteway v. U.S. Dep’t
21 of Homeland Security, 501 F.3d 116, 120 (2d Cir. 2007).
22 This jurisdictional bar has been extended to petitions
23 seeking review of the BIA’s denials of motions to reopen,
24 where review of the underlying removal order would be
25 prohibited by § 1252(a)(2)(C). See Durant v. INS, 393 F.3d
2
1 113, 115-16 (2d Cir. 2004) (finding that, because Court
2 lacked jurisdiction under § 1252(a)(2)(C) to review order of
3 removal based on conviction of certain criminal offenses,
4 Court also lacked jurisdiction to review BIA’s denial of a
5 motion to reopen). Although, pursuant to § 1252(a)(2)(D),
6 we retain jurisdiction over constitutional claims and
7 questions of law, an alien “cannot use the rhetoric of a
8 ‘constitutional claim’ or ‘question of law’ to disguise what
9 is essentially a quarrel about fact-finding or the exercise
10 of discretion.” Barco-Sandoval v. Gonzales, 516 F.3d 35,
11 39-40 (2d Cir. 2008) (quoting Xiao Ji Chen v. U.S. Dep’t of
12 Justice, 471 F.3d 315, 330 (2d Cir. 2006)).
13 To the extent that the petition for review raises a
14 question of law, it fails. Grajales argues that the BIA
15 erred by requiring her to demonstrate the Colombian
16 government’s consent or acquiescence in her torture because
17 the BIA should have applied the standard set forth in
18 Khouzam v. Ashcroft, 361 F.3d 161 (2d Cir. 2004), which
19 requires merely the government’s “awareness” that torture
20 exists. Contrary to her assertions, Khouzam requires both
21 that government officials “know of or remain willfully blind
22 to an act and thereafter breach their legal responsibility
3
1 to prevent it.” Id. at 171. Applying this standard, the
2 BIA determined that Grajales’s evidence indicated that the
3 government had taken steps to prevent FARC activities,
4 noting a letter she had submitted from her brother, in which
5 he stated that Colombian police had been helpful and praised
6 the Colombian government for making improvements. Thus,
7 nothing in the record suggests that the BIA applied the
8 incorrect legal standard in evaluating Grajales’s evidence.
9 See id.; see also Pierre v. Gonzales, 502 F.3d 109 (2d Cir.
10 2007) (explaining that a petitioner must provide evidence of
11 specific intent to inflict severe pain or suffering).
12 Accordingly, we deny the petition for review as to this
13 issue.
14 Grajales’s argument that the BIA “minimized” evidence
15 in the record simply amounts to a challenge to the agency’s
16 factual findings, over which we lack jurisdiction. See
17 Barco-Sandoval, 516 F.3d at 39-40. As the BIA referenced
18 and considered Grajales’s exhibits, nothing in the record
19 indicates that the BIA applied an incorrect legal standard
20 in evaluating Grajales’s motion or ignored any evidence in
21 the record. See Xiao Ji Chen, 471 F.3d at 338 n.17, 342
22 (presuming that the agency has taken into account all of the
4
1 evidence before it, unless the record compellingly suggests
2 otherwise, and stating that the weight afforded to the
3 applicant’s evidence in immigration proceedings lies largely
4 within the discretion of the agency). Accordingly, Grajales
5 has failed to state a colorable question of law, as her
6 dispute rests largely with the weight accorded by the BIA to
7 the evidence. Thus, we must dismiss her petition for review
8 to the extent she challenges the BIA’s determination that
9 her evidence was insufficient to support her claim for
10 relief under the CAT, as such challenges do not constitute
11 constitutional claims or questions of law. See 8 U.S.C.
12 § 1252(a)(2)(C),(D); Durant, 393 F.3d at 115-16.
13 For the foregoing reasons, the petition for review is
14 DENIED in part and DISMISSED in part. As we have completed
15 our review, the pending motion for a stay of removal in this
16 petition is DENIED as moot. Any pending request for oral
17 argument in this petition is DENIED in accordance with
18 Federal Rule of Appellate Procedure 34(a)(2), and Second
19 Circuit Local Rule 34.1(b).
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe, Clerk
5