Fenelon v. Lynch , 675 F. App'x 49 ( 2017 )

16-444
Fenelon v. Lynch
BIA
Bukszpan, IJ
A038 921 625
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 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
12th day of January, two thousand seventeen.
PRESENT:
JON O. NEWMAN,
JOHN M. WALKER, JR.,
REENA RAGGI,
Circuit Judges.
_____________________________________
MARC ANTOINE FENELON,
Petitioner,
v. 16-444
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Marc Antoine Fenelon, pro se,
Uniondale, N.Y.
FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
Assistant Attorney General; Leslie
McKay, Senior Litigation Counsel;
Lisa M. Damiano, Trial Attorney,
Office of Immigration Litigation,
U.S. Department of Justice,
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 IN PART and DENIED IN PART.*
Petitioner Marc Antoine Fenelon, a native and citizen of
Haiti, seeks review of a January 14, 2016 decision of the BIA
denying Fenelon’s motion to remand and affirming a December 14,
2009 decision of an Immigration Judge (“IJ”), denying Fenelon’s
application for withholding of removal and relief under the
Convention Against Torture (“CAT”). In re Marc Antoine
Fenelon, No. A038 921 625 (B.I.A. Jan. 14, 2016), aff’g No. A038
921 625 (Immig. Ct. N.Y. City Dec. 14, 2009). We assume the
parties’ familiarity with the underlying facts and procedural
history in this case.
We have reviewed the decisions of both the IJ and BIA “for
the sake of completeness.” Wangchuck v. DHS, 448 F.3d 524, 528
(2d Cir. 2006). The applicable standards of review are well
established. 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder,
562 F.3d 510, 513 (2d Cir. 2009).
Despite Fenelon’s assertions otherwise, we lack
jurisdiction to review a final order of removal against an alien
who is removable by reason of having committed a controlled
* Petitioner’s motion to proceed in forma pauperis is GRANTED.
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substance offense. 8 U.S.C. §§ 1252(a)(2)(C),
1227(a)(2)(A)(iii); Ortiz-Franco v. Holder, 782 F.3d 81, 86 (2d
Cir. 2015) (holding that the jurisdictional bar applies to the
denial of deferral of removal under the CAT). Nevertheless,
we retain jurisdiction to consider “constitutional claims or
questions of law,” 8 U.S.C. § 1252(a)(2)(D), which we review
de novo, Pierre v. Holder, 588 F.3d 767, 772 (2d Cir. 2009).
For jurisdiction to attach, however, such claims must be
colorable. Barco-Sandoval v. Gonzales, 516 F.3d 35, 40-41 (2d
Cir. 2008).
I. Particularly Serious Crime
An alien is barred from withholding of removal under both
the Immigration and Nationality Act (“INA”) and the CAT if he
has been convicted of a particularly serious crime. 8 U.S.C.
§ 1231(b)(3) (INA); 8 C.F.R. § 1208.16(d)(2) (CAT). In Matter
of Y-L-, the Attorney General adopted a strong presumption that
drug trafficking aggravated felonies are particularly serious
crimes. See 23 I. & N. Dec. 270 (A.G. 2002), overruled on other
grounds by Khouzam v. Ashcroft, 361 F.3d 161, 170–71 (2d Cir.
2004).
We reject both Fenelon’s general challenge to Matter of
Y-L- and his argument that the agency failed to sufficiently
explain its application in his case. The presumption in Matter
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of Y-L- is entitled to Chevron deference: the Attorney General’s
creation of strong presumptions for drug trafficking aggravated
felonies was a reasonable interpretation of the statute because
the text itself provides the Attorney General with discretion
to make the determination. See 8 U.S.C. § 1231(b)(3)(B)(ii);
Miguel-Miguel v. Gonzales, 500 F.3d 941, 945-49 (9th Cir. 2007)
(expressly upholding Matter of Y-L-’s presumptive standard).
Fenelon’s argument that the BIA did not sufficiently explain
its application of the Matter of Y-L- factors merely employs
the “rhetoric” of a question of law to “quarrel[] over the
correctness of the [agency’s] factual findings or justification
for [its] discretionary choices,“ which we lack jurisdiction
to review. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d
315, 329 (2d Cir. 2006). Here, the IJ cited Matter of Y-L-,
articulated the factors relevant to rebutting the presumption,
determined that Fenelon submitted no evidence to rebut the
presumption, and discussed the circumstances of Fenelon’s
conviction. Fenelon points to no error in the agency’s
decision, and there is no indication that the agency applied
an incorrect standard or ignored evidence.
II. Convention Against Torture
Fenelon’s challenges to the agency’s denial of CAT relief
do not raise a colorable constitutional claim or question of
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law. He argues that the agency ignored evidence and that its
factual findings are contrary to the record evidence. However,
both the IJ and BIA explicitly discussed Fenelon’s CAT evidence,
but agreed that he failed to demonstrate that it was more likely
than not he would be tortured by or with the acquiescence of
the government. The record therefore does not compellingly
suggest that any evidence was ignored. See Xiao Ji Chen, 471
F.3d at 336 n.17 (“[W]e presume that [the agency] has taken into
account all the evidence before [it], unless the record
compellingly suggests otherwise . . . .”). Nor did the agency
err in its consideration of the expert report. See id. at 342(observing that the weight accorded to the applicant's evidence
in immigration proceedings lies largely within the discretion
of the agency). The BIA acknowledged that mentally ill
detainees may be singled out for abuse because of bizarre
behavior and the inability to comply with prison rules. The
report, however, spoke generally about the potential problems
that untreated mental illness can create for Haitian prisoners,
did not address the potential impact of Fenelon’s mental illness
on his behavior in prison, and Fenelon did not present any
evidence that he was likely to exhibit such non-compliant
behavior, other than to testify that he was diagnosed with
depression and had experienced suicidal tendencies. Fenelon
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has therefore failed to identify any colorable constitutional
or legal questions concerning the agency’s denial of CAT relief.
See Hui Lin Huang v. Holder, 677 F.3d 130, 134 (2d Cir. 2012).
III. Motion to Remand
Finally, Fenelon does not raise a constitutional claim or
question of law concerning the BIA’s denial of his motion to
remand. See Li Yong Cao v. Dep't of Justice, 421 F.3d 149, 157
(2d Cir. 2005) (A motion to remand based on new evidence is
subject to the same standards as motions to reopen.); Durant
v. INS, 393 F.3d 113, 114 (2d Cir. 2004) (holding that the
criminal jurisdiction bar applies to the denials of motions to
reopen). We review the BIA’s denial of a motion to remand for
consideration of new evidence for abuse of discretion. Li Yong
Cao, 421 F.3d at 157. Fenelon argues that the BIA erroneously
found that his new evidence was “duplicative” and “not
material.” The BIA did not legally err when it found that
Fenelon’s evidence was duplicative or immaterial: he submitted
an updated 2010 report that largely quoted verbatim from the
2007 and 2008 reports from the same expert; the BIA explained
that the report related an individual who, unlike Fenelon who
suffers from depression, had been diagnosed with paranoid
schizophrenia; and the IJ had observed that Fenelon did not
indicate that he behaved abnormally when off his medication for
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two weeks in 2006.
For the foregoing reasons, the petition for review is
DISMISSED IN PART and DENIED IN PART. 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 DISMISSED 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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