Vang v. Holder, Jr. , 620 F. App'x 3 ( 2015 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 14-1439
YA PAO VANG,
Petitioner,
v.
LORETTA E. LYNCH,*
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Thompson, and Barron,
Circuit Judges.
John H. Ruginski, Jr., on brief for petitioner.
Sunah Lee, Trial Attorney, Office of Immigration Litigation,
Civil Division, U.S. Department of Justice, Joyce R. Branda, Acting
Assistant Attorney General, Civil Division, and Cindy S. Ferrier,
Assistant Director, Office of Immigration, on brief for respondent.
July 17, 2015
*
Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Loretta E. Lynch is substituted for former Attorney General Eric H.
Holder, Jr. as respondent.
TORRUELLA, Circuit Judge. Petitioner Ya Pao Vang
("Vang"), a Laotian native and citizen, seeks our review of an
order of the Board of Immigration Appeals ("BIA") affirming an
Immigration Judge's ("IJ") decision denying Vang's applications for
withholding of removal and for protection under the Convention
Against Torture. Unfortunately for Vang, however, his removal is
based on a conviction for an aggravated felony and he raises no
colorable legal or constitutional claims. Thus, we lack
jurisdiction to review these denials and must dismiss his petition.
I. Background
Vang is a native and citizen of Laos who was admitted to
the United States as a refugee on July 31, 1986, and became a
lawful permanent resident on January 15, 1988. Approximately ten
years after entering the United States, on May 21, 1996, Vang was
convicted, pursuant to a plea agreement, of assault with a
dangerous weapon under section 11-5-2 of the General Laws of Rhode
Island. He was given a suspended sentence of five years'
imprisonment and five years of probation.
Removal proceedings against Vang began on September 25,
2008, when the Department of Homeland Security filed a Notice to
Appear charging Vang with removability under
section 237(a)(2)(A)(iii) of the Immigration and Nationality Act
("INA"), 8 U.S.C. § 1227(a)(2)(A)(iii). The basis of this charge
was Vang's Rhode Island conviction, a conviction which qualified as
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an aggravated felony under the INA.1 Vang conceded that this
conviction made him removable as charged, but he nevertheless
sought withholding of removal under section 241(b)(3) of the INA,
8 U.S.C. § 1231(b)(3), and protection under the Convention Against
Torture.2
A hearing was held before an IJ on December 22, 2011,
during which Vang and his father both testified. Each stated that
he feared Vang would be persecuted if returned to Laos due to
Vang's father's prior military service. However, neither Vang nor
his father could identify who would harm Vang upon his return.
Moreover, Vang's father testified that he and Vang's brother had
recently visited Laos for three to four weeks without incident.
After considering this testimony, as well as the State Department's
Country Reports on Laos which indicated that there had been
1
Section 101(a)(43)(F) of the INA, 8 U.S.C. § 1101(a)(43)(F),
defines an aggravated felony as "a crime of violence (as defined in
section 16 of Title 18, but not including a purely political
offense) for which the term of imprisonment [is] at least one
year." 18 U.S.C. § 16, meanwhile, defines a "crime of violence" as
either
(a) an offense that has as an element the use, attempted
use, or threatened use of physical force against the
person or property of another, or
(b) any other offense that is a felony and that, by its
nature, involves a substantial risk that physical force
against the person or property of another may be used in
the course of committing the offense.
2
Vang also initially sought relief under section 212(c) of the
INA, but the parties agreed that he was ineligible.
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significant changes in the country's conditions, the IJ denied
Vang's applications. Regarding his application for withholding of
removal, it found that Vang did not demonstrate a clear probability
that he would be persecuted in the future if returned to Laos.
Similarly, the IJ denied Vang's application under the Convention
Against Torture after concluding that Vang "set forth absolutely no
facts or circumstances" showing that it was more likely than not
that Vang would be tortured if returned to Laos.
On January 20, 2012, Vang appealed the IJ's denial of his
applications. The BIA affirmed on March 19, 2014, holding that the
"Immigration Judge correctly concluded that [Vang] did not
demonstrate a clear probability that he [would] be persecuted in
the future if returned to Laos" and that Vang also "did not
establish through objective evidence that it is more likely than
not that he would be subject to torture in Laos by or with the
acquiescence (including willful blindness) of a government official
or person working in an official capacity." This timely appeal
followed.
II. Discussion
The BIA's decision is a final agency order, so we would
ordinarily review it using traditional standards of agency review.3
In other words, we would test the BIA's factual determinations
3
Where the BIA adopts parts of the IJ's decision, we also review
the adopted portion of the IJ's decision as if it were part of the
BIA's. Gourdet v. Holder, 587 F.3d 1, 5 (1st Cir. 2009).
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under the deferential "substantial evidence" standard and its legal
conclusions de novo, while still giving deference to the BIA's
interpretation of the statutes and regulations that it administers.
Arévalo-Girón v. Holder, 667 F.3d 79, 81 (1st Cir. 2012). However,
because Vang is removable by reason of his conviction of an
aggravated felony, our jurisdiction is circumscribed to questions
of law and to constitutional claims. INA § 242(a)(2)(C), 8 U.S.C.
§ 1252(a)(2)(C) ("[N]o court shall have jurisdiction to review any
final order of removal against an alien who is removable by reason
of having committed a criminal offense covered in section . . .
1227(a)(2)(A)(iii) . . . of this title . . . ."); INA
§ 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D) ("Nothing in subparagraph
. . . (C) . . . which limits or eliminates judicial review, shall
be construed as precluding review of constitutional claims or
questions of law raised upon a petition for review filed with an
appropriate court of appeals . . . ."); see also Telyatitskiy v.
Holder, 628 F.3d 628, 630 (1st Cir. 2011); Larngar v. Holder, 562
F.3d 71, 75 (1st Cir. 2009).
Recognizing this, Vang asserts that the IJ and BIA
violated his right to due process by failing to consider certain
evidence and by imposing too high of a burden -- legal errors he
claims we retain jurisdiction to review. But simply rebranding a
factual challenge as a legal one does not make it so. See
Jaquez v. Holder, 758 F.3d 434, 435 (1st Cir. 2014) ("Simply
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describing these factual arguments as a claim that the agency
committed an error of law is insufficient to confer
jurisdiction."); Hasan v. Holder, 673 F.3d 26, 33 (1st Cir. 2012)
("We have repeatedly held that '[c]loaking [a factual claim] in the
garb of legal error does not alter its nature.'" (alterations in
original) (quoting Ayeni v. Holder, 617 F.3d 67, 73 (1st Cir.
2010))). Vang must assert a colorable due process claim to invoke
our jurisdiction, and he fails to do so.
A petitioner's right to due process entails, at its core,
"the right to notice of the nature of the charges and a meaningful
opportunity to be heard." Choeum v. INS, 129 F.3d 29, 38 (1st Cir.
1997). Here, Vang never alleges that he did not receive notice or
that he was unable to be heard. Nor could he, since he not only
received proper notice, but he was also provided a hearing where he
presented witnesses and submitted evidence. See INA § 240, 8
U.S.C. § 1229a(b)(4)(B) ("In proceedings under this section, under
regulations of the Attorney General -- the alien shall have a
reasonable opportunity to examine the evidence against the alien,
to present evidence on the alien's own behalf, and to cross-examine
witnesses presented by the Government . . . ."); Muñoz-Monsalve v.
Mukasey, 551 F.3d 1, 6 (1st Cir. 2008) ("[F]undamental fairness
means in general terms that the alien must have a meaningful
opportunity to present evidence and be heard by an impartial
judge.").
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Instead, Vang's contentions are that the IJ and BIA
failed to consider the Country Reports on Laos and that they
imposed the incorrect burden by requiring Vang to identify the
specific people who would cause him harm. The IJ and BIA did no
such thing. The IJ specifically referred to the Country Reports in
its Analysis and Findings, noting that the Country Reports show
"that there have been significant changed country conditions" in
Laos and that "based on all of these facts and circumstances,"
Vang's petition must be denied. (Emphasis added). The BIA,
meanwhile, added that "[w]hile [Vang] argues that the 2010 United
States Department of State Human Rights Report for Laos shows that
human rights abuses occur in that country, he has not identified
portions of the report that would tend to establish that he is
likely to be mistreated." (Citations omitted).
As for Vang's second contention, neither the IJ nor the
BIA stated that Vang was specifically required to identify his
assailants in order to have his petition granted. To the contrary,
each found that the inability of Vang to identify the source of his
fears of persecution and torture was just one factor -- along with
the Country Reports and Vang's father's testimony that neither he
nor Vang's brother were threatened during their recent trip -- that
led it to conclude that Vang did not carry his burden of
establishing that it is more likely than not that his life or
freedom would be threatened (for his application for withholding)
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or that he would be tortured (for his application under the Convention
Against Torture).
At the end of the day, these alleged "due process" claims boil
down to no more than a disagreement with the factual findings made by the
IJ and BIA: Vang believes more weight should have been given to the
Country Reports and less weight should have been given to his inability
to pinpoint his fear and to his relatives' recent safe travels in Laos.
This is exactly the type of reweighing of evidence and of fact-finding
that we are jurisdictionally precluded from engaging in. See Hasan, 673
F.3d at 33 ("The very heart of Petitioners' claim, that the BIA's
analysis regarding their fears . . . was not 'detailed' and failed to
'adequately' address the issue, is fundamentally an objection to a
factual determination by the BIA and the relative evidentiary weight the
agency gave to competing considerations."); Telyatitskiy, 628 F.3d at 631
("He first argues that by failing to reference record evidence of police
brutality against Jews in Ukraine, the IJ must have failed to consider
that evidence entirely. A full and fair reading . . . however, suggests
that this . . . argument is little more than a thinly disguised claim
concerning evidentiary weight, which we are statutorily barred from
reviewing.").
III. Conclusion
Accordingly, we lack jurisdiction to consider Vang's petition
and therefore dismiss it.
DISMISSED.
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