Padilla v. Holder

11-3909
Padilla v. Holder
BIA
Abrams, IJ
A073 656 250
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 20th day of May, two thousand thirteen.
5
6 PRESENT:
7 REENA RAGGI,
8 DENNY CHIN,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 JORGE A. PADILLA, AKA
14 JOSE ALBERTO PADILLA,
15 Petitioner,
16
17 v. 11-3909
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Judy Resnick, Far Rockaway, New
25 York.
26
27 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
28 Attorney General; Mary Jane Candaux,
29 Assistant Director; Matthew A.
30 Connelly, Trial Attorney, United
1 States Department of Justice, Office
2 of Immigration Litigation,
3 Washington, D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DENIED.
9 Jorge A. Padilla, a native and citizen of El Salvador,
10 seeks review of a September 7, 2011, order of the BIA
11 reversing the September 14, 2009, decision of Immigration
12 Judge (“IJ”) Steven R. Abrams, and denying his application
13 for withholding of removal and relief under the Convention
14 Against Torture (“CAT”). In re Jorge A. Padilla, No. A073
15 656 250 (B.I.A. Sept. 7, 2011), rev’g No. A073 656 250
16 (Immig. Ct. N.Y. City Sept 14, 2009). We assume the
17 parties’ familiarity with the underlying facts and
18 procedural history in this case.
19 Title 8, Section 1252(a)(2)(C) of the United States
20 Code provides that no court shall have jurisdiction to
21 review a final order of removal against an alien, such as
22 Padilla, who was convicted of a controlled substance offense
23 or a crime involving moral turpitude. Notwithstanding that
24 provision, we retain jurisdiction to review constitutional
2
1 claims and “questions of law.” 8 U.S.C. § 1252(a)(2)(D).
2 Under the circumstances of this case, we have reviewed only
3 the decision of the BIA. See Yan Chen v. Gonzales, 417 F.3d
4 268, 271 (2d Cir. 2005).
5 I. Withholding of Removal
6 Under 8 U.S.C. § 1231(b)(3)(B)(ii), withholding of
7 removal cannot be granted to an alien who, “having been
8 convicted by a final judgment of a particularly serious
9 crime[,] is a danger to the community of the United States.”
10 The Attorney General in Matter of Y-L-, A-G-, and R-S-R-,
11 noting that the courts and the BIA have long recognized that
12 drug trafficking felonies constitute “particularly serious
13 crimes,” concluded that “[o]nly under the most extenuating
14 circumstances that are both extraordinary and compelling
15 would departure from this interpretation be warranted or
16 permissible.” 23 I. & N. Dec. 270, 274 (BIA Mar.5, 2002),
17 overruled, in part, on other grounds, by Khouzam v.
18 Ashcroft, 361 F.3d 161, 171 (2d Cir. 2004). The Attorney
19 General then identified six threshold requirements that an
20 alien must demonstrate to show “extraordinary and compelling
21 circumstances that justify treating a particular drug
22 trafficking crime as falling short” of a particularly
23 serious crime. Id. at 276-77 (listing requirements).
3
1 Padilla does not argue that these six requirements do
2 not apply to his case, and as the BIA noted, there is no
3 evidence in the record showing that Padilla met these
4 requirements. Rather, Padilla advances the more limited
5 argument that, in violation of his due process rights, he
6 “was never given the opportunity to present rebuttal
7 evidence,” and that instead of reversing the IJ’s decision,
8 the BIA should have remanded the case to the IJ for a new
9 hearing. Padilla’s argument is without merit, as he had an
10 opportunity to present evidence to the IJ to rebut the
11 presumption that a drug trafficking conviction is a
12 particularly serious crime, and an opportunity to reply to
13 the government’s argument before the BIA that his conviction
14 was a particularly serious crime. The BIA properly engaged
15 in a de novo review to determine that the evidence Padilla
16 presented did not rebut the presumption that his conviction
17 was a particularly serious crime that rendered him
18 statutorily ineligible for withholding of removal. See
19 8 U.S.C. § 1231(b)(3)(B)(ii); 8 C.F.R. § 1003.1(d)(3)(ii);
20 Matter of Y-L-, 23 I. & N. Dec. at 276-77.
21
22
4
1 II. CAT relief
2 Padilla has waived any challenge to the substantive
3 basis of the BIA’s denial of deferral of removal pursuant to
4 the CAT. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541
5 n.1, 545 n.7 (2d Cir. 2005). Instead, Padilla argues that
6 the BIA erred, and deprived him of his due process rights,
7 by reviewing his CAT application in the first instance,
8 rather than remanding to the IJ for consideration of that
9 application. This argument presents a constitutional claim,
10 which we retain jurisdiction to review. See Saloum v.
11 USCIS, 437 F.3d 238, 243 (2d Cir. 2006).
12 In immigration proceedings, due process requires that,
13 at a minimum, an alien “must be afforded the opportunity to
14 be heard at a meaningful time and in a meaningful manner.”
15 Burger v. Gonzales, 498 F.3d 131, 134 (2d Cir. 2007)
16 (internal quotation marks omitted). “Parties claiming
17 denial of due process in immigration cases must, in order to
18 prevail, allege some cognizable prejudice fairly
19 attributable to the challenged process.” Garcia-Villeda v.
20 Mukasey, 531 F.3d 141, 149 (2d Cir. 2008)(internal quotation
21 marks omitted).
22 Padilla applied for CAT relief before the IJ, and had
23 an opportunity during his merits hearing to present evidence
5
1 in support of his claims for both withholding of removal and
2 CAT relief. While the IJ did not make a decision regarding
3 Padilla’s CAT application, the BIA was able to review the
4 record established during Padilla’s merits hearing to
5 determine whether Padilla had demonstrated that he would be
6 tortured if he returned to El Salvador. The BIA concluded
7 that Padilla had not established his CAT eligibility
8 because: (1) he had not shown that it was more likely than
9 not he would be tortured if he returned to El Salvador; and
10 (2) he had not shown that any torture would occur with the
11 consent or acquiescence of the Salvadoran government.
12 The BIA reviews findings of fact under the “clearly
13 erroneous” standard, and all other issues “de novo.”
14 8 C.F.R. § 1003.1(d)(3)(i), (ii). The BIA’s conclusions
15 that whatever mistreatment Padilla might suffer would not
16 rise to the level of torture, and that Padilla had not shown
17 such mistreatment would occur with the consent or
18 acquiescence of the El Salvadoran government, are both legal
19 conclusions. See Hui Lin Huang v. Holder, 677 F.3d 130,
20 134-35 (2d Cir. 2012); De La Rosa v. Holder, 598 F.3d 103,
21 110 (2d Cir. 2010). Because Padilla had a full and fair
22 opportunity to present his CAT claim before the IJ, and
23 because the BIA reviewed the record evidence to determine
6
1 that as a matter of law, Padilla had not met his burden of
2 showing eligibility for CAT relief, Padilla’s due process
3 rights were not violated. See id.; Burger, 498 F.3d at 134.
4 Moreover, despite the BIA’s possible error in reviewing de
5 novo the IJ’s conclusion that Padilla would suffer
6 mistreatment in El Salvador, see Hui Lin Huang, 677 F.3d at
7 134, the two correct grounds upon which the BIA based its
8 decision are sufficient to support its ruling on Padilla’s
9 CAT claim. See Cao He Lin v. U.S. Dep’t of Justice, 428
10 F.3d 391, 401 (2d Cir. 2005).
11 For the foregoing reasons, the petition for review is
12 DENIED. As we have completed our review, the pending motion
13 for a stay of removal in this petition is DENIED as moot.
14 Any pending request for oral argument in this petition is
15 DENIED in accordance with Federal Rule of Appellate
16 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
17 FOR THE COURT:
18 Catherine O’Hagan Wolfe, Clerk
7