David Sesay v. Eric Holder, Jr.

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1299
DAVID SESAY,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: August 20, 2013 Decided: September 5, 2013
Before KING and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Petition dismissed by unpublished per curiam opinion.
Randall L. Johnson, JOHNSON & ASSOCIATES, P.C., Arlington,
Virginia, for Petitioner. Stuart F. Delery, Acting Assistant
Attorney General, William C. Peachey, Assistant Director,
Jonathan Robbins, Office of Immigration Litigation, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David Sesay, a native and citizen of Sierra Leone,
petitions for review of the Board of Immigration Appeals’
(“Board”) order denying his motion for remand and dismissing his
appeal of the immigration judge’s (“IJ”) order denying Sesay’s
application for protection under the Convention Against Torture
(“CAT”). The Attorney General argues that we lack jurisdiction
to review the claims advanced by Sesay because he has been
convicted of an aggravated felony and does not assert any
reviewable constitutional claim or question of law.
Under 8 U.S.C. § 1252(a)(2)(C) (2006), this court
generally lacks jurisdiction to review the final order of
removal of an alien convicted of certain enumerated crimes,
including an aggravated felony. We retain jurisdiction “to
review factual determinations that trigger the jurisdiction-
stripping provision [in § 1252(a)(2)(C)], such as whether
[Sesay] [i]s an alien and whether []he has been convicted of an
aggravated felony.” Ramtulla v. Ashcroft, 301 F.3d 202, 203
(4th Cir. 2002). But once these two determinations are
confirmed, we may review only “constitutional claims or
questions of law” raised in an appropriate petition for review.
8 U.S.C. § 1252(a)(2)(D) (2006); see Turkson v. Holder, 667 F.3d
523, 527 (4th Cir. 2012).
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Sesay concedes that he is an alien and that he has
been convicted of an aggravated felony. Having reviewed the
record, we conclude that we lack jurisdiction to review Sesay’s
petition because he has failed to assert a question of law or a
constitutional claim that falls within the § 1252(a)(2)(D)
exception.
As we have explained, the jurisdiction-stripping
provisions of § 1252(a)(2)(C) bar us from reviewing, in cases
where an alien has been convicted of an aggravated felony, any
of the Board’s factual determinations. Saintha v. Mukasey, 516
F.3d 243, 248 (4th Cir. 2008). A factual determination is any
determination that we would review under the “substantial
evidence” standard. Id. at 249. And because the Board’s
conclusion that Sesay would not likely face torture upon his
return to Sierra Leone is a decision that we would review only
to determine if it was supported by substantial evidence, the
Board’s “CAT determination here is properly characterized as
factual, not legal, in nature.” Id. at 250. We therefore lack
authority to review it.
Section 1252(a)(2)(C)’s prohibition against reviewing
final orders of removal when the alien is removable for having
been convicted of an aggravated felony extends to denials of
motions to reopen and motions to remand. See Bracamontes v.
Holder, 675 F.3d 380, 389-90 (4th Cir. 2012); Esquivel v.
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Mukasey, 543 F.3d 919, 923 (7th Cir. 2008); see also Larngar v.
Holder, 562 F.3d 71, 75 (1st Cir. 2009); Hanan v. Mukasey, 519
F.3d 760, 763 (8th Cir. 2008); Cruz v. Attorney Gen., 452 F.3d
240, 246 (3d Cir. 2006); Obioha v. Gonzales, 431 F.3d 400, 406-
08 (4th Cir. 2005); Durant v. INS, 393 F.3d 113, 115-16 (2d Cir.
2004). Because Sesay’s assertions touching the Board’s denial
of his motion to remand do not raise a constitutional claim or
legal question, we have no authority to review them, either.
Accordingly, we dismiss the petition for review. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
PETITION DISMISSED
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