Sanchez v. Sessions , 679 F. App'x 28 ( 2017 )

14-2362
Sanchez v. Sessions
BIA
Page, IJ
A045 060 116
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
14th day of February, two thousand seventeen.
PRESENT:
PETER W. HALL,
CHRISTOPHER F. DRONEY,
Circuit Judges,
VICTOR A. BOLDEN,*
District Judge.
_____________________________________
LUZ DE ALBA SANTOS DE SANCHEZ, AKA
LUZDEALBA SANTOS, AKA LUZ
SANTOS-SANCHEZ,
Petitioner,
v. 14-2362
JEFF SESSIONS, UNITED STATES ATTORNEY
GENERAL,1
Respondent.
_____________________________________
* Judge Victor A. Bolden, United States District Court for the District of
Connecticut, sitting by designation.
1 - Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General
Jeff Sessions is automatically substituted as Respondent.
FOR PETITIONER: JAMES A. LOMBARDI, New York, NY.
FOR RESPONDENT: DAVID J. SCHOR, Trial Attorney, Kohsei
Ugumori, Senior Litigation Counsel,
for Benjamin C. Mizer, Principal
Deputy Assistant Attorney General,
Office of Immigration Litigation,
United States Department of Justice,
Washington, DC.
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
DENIED.
Petitioner Luz De Alba Santos De Sanchez (“Sanchez”), a
native and citizen of the Dominican Republic, seeks review of
a June 4, 2014, decision of the BIA affirming a June 10, 2013,
decision of an Immigration Judge (“IJ”) denying Sanchez’s
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Luz De Alba
Santos De Sanchez, No. A045 060 116 (B.I.A. June 4, 2014), aff’g
No. A045 060 116 (Immig. Ct. N.Y.C. June 10, 2013). We assume
the parties’ familiarity with the underlying facts and
procedural history in this case.
Sanchez challenges only the denial of deferral of removal
under the CAT. 8 C.F.R. § 1208.17. That is a mandatory form
of relief that hinges on risk within the destination country.
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Id. §§ 1208.16(c), 1208.17. It requires the applicant to show
that she would more likely than not be tortured; it does not
require a nexus to any protected ground. Id. §§ 1208.16(c),
1208.17. The CAT’s implementing regulations define torture as
pain and suffering “inflicted by or at the instigation of or
with the consent or acquiescence of a public official or other
person acting in an official capacity.” Id. § 1208.18(a)(1).
Acquiescence, in turn, “requires that the public official,
prior to the activity constituting torture, have awareness of
such activity and thereafter breach his or her legal
responsibility to intervene to prevent such activity.” Id.
§ 1208.18(a)(7).
Sanchez was convicted of conspiracy to distribute heroin
in 2008, and she was ordered removed as an alien who had been
convicted of an aggravated felony, a conspiracy to commit an
aggravated felony, and a crime relating to a controlled
substance. Her conviction constrains our jurisdiction to
“constitutional claims or questions of law.” 8 U.S.C.
§§ 1252(a)(2)(C), (D); see Ortiz-Franco v. Holder, 782 F.3d 81,
86 (2d Cir. 2015). When assessing jurisdiction, we must “study
the arguments asserted” to “determine, regardless of the
rhetoric employed in the petition, whether it merely quarrels
over the correctness of the factual findings” or raises a true
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question of law. Xiao Ji Chen v. U.S. Dep’t of Justice, 471
F.3d 315, 329 (2d Cir. 2006); see also Mendez v. Holder, 566
F.3d 316, 323 (2d Cir. 2009) (identifying error of law where
“important” facts had been “totally overlooked and others ha[d]
been seriously mischaracterized”).
In the main, Sanchez argues that the agency committed legal
error by failing to address whether the government of the
Dominican Republic will be willfully blind to her torture.
This is a factual challenge cloaked as a legal question, which
we lack jurisdiction to review. The IJ and BIA both rejected
Sanchez’s theory of willful blindness. The IJ acknowledged
that governmental involvement can be shown by an official’s
willful blindness to torture, but found that Sanchez failed to
make that showing. See Khouzam v. Ashcroft, 361 F.3d 161, 171
(2d Cir. 2004). The BIA rejected as unpersuasive Sanchez’s
claim that her ex-boyfriend, against whom she cooperated in her
criminal case, is working with Dominican officials who would
acquiesce or show willful blindness to his revenge.
A prior panel ordered the parties to brief the purely legal,
subsidiary question whether the Dominican government’s general
ineffectiveness in preventing crime suggests that it is likely
to acquiesce to Sanchez’s torture absent evidence of corruption
or other specific inability or unwillingness to stop Sanchez’s
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ex-boyfriend. The Government argues that Sanchez failed to
administratively exhaust this issue. Not so.
We “may review a final order of removal only if . . . the
alien has exhausted all administrative remedies available to
the alien as of right.” 8 U.S.C. § 1252(d)(1). Although
Sanchez’s brief to the BIA made only a fleeting reference to
CAT relief, she argued government acquiescence in the context
of asylum and withholding, and the BIA reviewed the IJ’s denial
of CAT relief. That put Sanchez’s CAT claim before us. See
Waldron v. INS, 17 F.3d 511, 515 n.7 (2d Cir. 1993) (“[T]he BIA
addressed the issue in that appeal, apparently excusing
Waldron’s failure to raise the issue previously. Accordingly,
we also may consider the issue.”). As to the particular
argument, the INA “bars the consideration of bases for relief
that were not raised below, and of general issues that were not
raised below, but not of specific, subsidiary legal arguments,
or arguments by extension, that were not made below.” Gill v.
INS, 420 F.3d 82, 86 (2d Cir. 2005) (discussing 8
U.S.C. § 1252(d)(1)). Put another way, we do not “require
complete conformity between an alien’s argument below and on
appeal.” Id. at 86-87. We therefore have jurisdiction to
consider the “subsidiary legal argument” identified in our
prior order.
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Although we have jurisdiction to review the argument,
Sanchez addresses it only in passing, writing that “a government
can indicate its intent to allow this type of private torture
by citizens through its inaction, even where laws criminalizing
this type of violence exist.” Pet’r’s Br. 17. She cites
background evidence on the Dominican government in the context
of willful blindness, saying that it demonstrates “a pattern
and practice of cooperating and assisting criminals.” Id. at
15.
Under the BIA’s CAT jurisprudence, which we have approved,
that is not enough. As the Attorney General has explained, “It
is the likelihood of all necessary events coming together that
must more likely than not lead to torture, and a chain of events
cannot be more likely than its least likely link.” In re
J-F-F-, 23 I. & N. Dec. 912, 918 n.4 (AG 2006); see also Savchuck
v. Mukasey, 518 F.3d 119, 124 (2d Cir. 2008) (approving agency’s
application of J-F-F- to find CAT claim speculative). Sanchez
identifies a possible event: the Dominican government will fail
to protect her from her ex-boyfriend. But she draws no link
between the Dominican government’s general failure to protect
others and the facts in her case. Other courts of appeals have
rejected similar claims, even those paired with evidence that
the government previously failed to protect the individual
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applicant. See, e.g., Garcia-Milian v. Holder, 755 F.3d 1026,
1034-35 (9th Cir. 2013); Tamara-Gomez v. Gonzales, 447 F.3d 343,
351-52 (5th Cir. 2006); Reyes-Sanchez v. U.S. Att’y Gen., 369
F.3d 1239, 1241-43 (11th Cir. 2004). Sanchez’s claim rests on
a chain of assumptions that the agency was not obligated to
adopt. Savchuck, 518 F.3d at 124.
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, the stay of removal
that the Court previously granted in this petition is VACATED.
FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk
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