Octavio Ramirez v. Atty Gen USA ( 2011 )

  •                                                               NOT PRECEDENTIAL
                           UNITED STATES COURT OF APPEALS
                                FOR THE THIRD CIRCUIT
                                          No. 10-1137
                                  OCTAVIO LUIS RAMIREZ,
                           On Petition for Review of an Order of the
                                Board of Immigration Appeals
                                 (Agency No. A029-589-447)
                        Immigration Judge: Honorable Jeffrey L. Romig
                       Submitted Pursuant to Third Circuit LAR 34.1(a)
                                      January 3, 2011
              Before: AMBRO, HARDIMAN AND STAPLETON, Circuit Judges
                               (Opinion filed: February 10, 2011)
          Petitioner Octavio Ramirez petitions for review of the December 28, 2009
    decision of the Board of Immigration Appeals (“BIA”) to dismiss his appeal and affirm
    the Immigration Judge’s denial of his application for deferral of removal under the
    Convention Against Torture. The Government has moved to dismiss the petition for lack
    of jurisdiction. For the reasons that follow, we will grant in part and deny in part the
    Government’s motion to dismiss. To the extent that we have jurisdiction, we will deny
    Ramirez’s petition for review.
           Ramirez, a native of Nicaragua, was admitted to the United States as a lawful
    permanent resident of the United States in 2000. In 2002, Ramirez pleaded guilty in the
    United States District Court for the Southern District of Florida of conspiracy to import
    five kilograms or more of cocaine in violation of 21 U.S.C. § 963.1 Based on his
    conviction, the Department of Homeland Security commenced removal proceedings
    against Ramirez pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) (conviction of an aggravated
    felony) and 8 U.S.C. § 1227(a)(2)(B) (conviction of a controlled substance violation).
           Ramirez, proceeding pro se, conceded removability and filed an application for
    asylum, withholding of removal, and for deferral of removal under the Convention
    Against Torture (“CAT”).2 The Immigration Judge (“IJ”) held that because Ramirez had
    been convicted of a felony relating to a drug trafficking crime, he was not eligible for
    asylum under INA § 208(b)(2)(B)(i). The IJ further held that because the conviction
    involved more than a five-year sentence, the conviction was a “particularly serious
             Ramirez was convicted and sentenced to 135 months of imprisonment and is
           currently in federal custody serving that sentence.
             Venue was changed from Florida to Pennsylvania in January 2008 and removal
           proceedings were completed in York, Pennsylvania.
    crime” which rendered him ineligible for withholding of removal under INA §
    241(b)(3)(B)(ii). The IJ denied relief with respect to Ramirez’s remaining request for
    deferral of deportation under CAT because he concluded Ramirez had not met his burden
    of proof.
           Ramirez’s claim under the CAT is based primarily on his testimony and that of his
    former attorney that he provided information to a prosecutor for the government of
    Nicaragua concerning Arnoldo Aleman, the former president of Nicaragua. Aleman was
    convicted of money laundering and corruption and sentenced to a 20-year term of
    imprisonment beginning in December 2003. The sentence was commuted in 2005 due to
    Aleman’s poor health. Ramirez believes that Aleman, or persons associated with him,
    will seek vengeance against Ramirez if he returns to Nicaragua. In denying his CAT
    claim, the IJ found that Ramirez established a subjectively genuine fear of returning to
    Nicaragua based on his having served as an informant against the former President, but
    had failed to show a “clear probability” of torture in the event of his return to Nicaragua.
           Ramirez appealed the IJ’s decision to the BIA. The BIA conducted a de novo
    review of the IJ’s application of law to the facts, and affirmed the IJ’s conclusion that
    Ramirez failed to establish that he would more likely than not face torture by, or with the
    acquiescence of, a member of the government of Nicaragua. Ramirez then filed the
    instant petition for review. The Government filed a motion to dismiss the petition for
    lack of jurisdiction.
           Although we generally lack jurisdiction to review final orders of removal against
    aliens who, like Ramirez, are removable for having committed an aggravated felony, see
    8 U.S.C. § 1252(a)(2)(C), we nonetheless have jurisdiction to review “pure
    questions of law” and “issues of application of law to fact, where the facts are undisputed
    and not the subject of challenge.” Kamara v. Att'y Gen., 
    420 F.3d 202
    , 211 (3d Cir.
    2005) (quotation marks and citations omitted); see 8 U.S.C. § 1252(a)(2)(D). We review
    such questions of law de novo. Kamara, 420 F.3d at 211.
           The Government argues that dismissal is warranted here because Ramirez does not
    raise any legal questions. We disagree. His petition alleges that the IJ erred as a matter
    of law in relying on In re J-F-F-, 23 I. & N. Dec. 912, 917-18 (AG 2006), to deny his
    claim under the CAT. He also argues that the IJ and the BIA misapplied the CAT
    standard to the undisputed facts of this case.3
           An alien seeking relief under the CAT must demonstrate that it is “more likely
    than not” that he will be tortured in the event of return to a designated country. 8 C.F.R.
    § 1208.16(c)(2). The applicant must show that the torture will be inflicted “by or at the
             Ramirez claims that the IJ improperly failed to consider whether the Nicaraguan
           government would acquiesce to his torture, and that the United States government
           breached its agreement to protect him as a witness. Because Ramirez’s CAT
           claim was denied on other grounds, these arguments were not reached by the
           agency and need not be addressed here. Furthermore, to the extent that these are
           claims “that an Immigration Judge or the BIA incorrectly weighed evidence, failed
           to consider evidence or improperly weighed equitable factors,” they are not
           questions of law that we have jurisdiction to review under § 1252(a)(2)(D).
    instigation of or with the consent or acquiescence of a public official or other person
    acting in an official capacity.” 8 C.F.R. §§ 1208.18(a)(1), (7); see also Silva-Rengifo v.
    Att’y Gen., 
    473 F.3d 58
    , 70 (3d Cir. 2007). In assessing whether the applicant has met
    this burden of proof, the agency must consider all evidence relevant to the possibility of
    future torture. 8 C.F.R. § 1208.16(c)(3).
           Ramirez argues that the IJ erred as a matter of law by placing too much emphasis
    on the decision of In re J-F-F-, in which the Attorney General stated that a petitioner may
    not establish a claim for CAT relief merely by stringing together a series of suppositions
    to show that it is more likely than not that torture will result where the evidence does not
    establish that each step in the hypothetical chain of events is more likely than not to
    occur. 23 I. & N. Dec. 912, 917-18 (AG 2006). We disagree. See, e.g., Savchuck v.
    518 F.3d 119
    , 123-24 (2d Cir. 2008). The IJ committed no legal error in
    analyzing Ramirez’s CAT claim as a series of hypothetical events (e.g., that Aleman will
    seek vengeance against him based on his cooperation, and that the Nicaraguan
    government would acquiesce in this). 4 The IJ evaluated each of Ramirez’s suppositions
           Jarbough v. Att’y Gen., 
    483 F.3d 184
    , 189 (3d Cir. 2007).
         We note that Ramirez argued before the IJ that certain segments of Nicaraguan
       society already knew that he had offered information to be used against Aleman. In
       support of this contention, Ramirez offered evidence that a Nicaraguan journalist had
       earlier attempted to communicate with him to ask about the same. Thus, the
       allegation that his cooperation was already known to at least some Nicaraguans is not
       properly characterized as a hypothetical or contingent event. However, the IJ’s
       approach concerning the remainder of Ramirez’s claim – that Aleman or his
       supporters are likely to kill him because of this cooperation, and that the Nicaraguan
       government would acquiesce – was correct.
    and concluded that he had not established that it is well known within Nicaragua that his
    cooperation led to Aleman’s conviction, or that anyone in Nicaragua will seek to torture
    him when he returns because of his cooperation; thus, he had not demonstrated a “clear
    probability” of torture in Nicaragua.5
           Further, the BIA applied the correct legal standard in its opinion dismissing
    Ramirez’s appeal. The BIA properly reviewed the IJ’s factual findings for clear error and
    conducted a de novo review of the IJ’s application of law to the facts. The BIA
    determined that Ramirez failed to establish that he would “more likely than not” face
    torture by or with the acquiescence of a member of the Nicaraguan government. The
    BIA’s conclusion was based on the IJ’s factual findings that (1) Ramirez’s cooperation
    with authorities occurred in 2004, after Aleman’s conviction in Nicaragua in 2003; (2)
    there was insufficient evidence to establish that Ramirez’s cooperation had been made
    public in Nicaragua; (3) there was no evidence that the Nicaraguan prosecutor used any
    of the evidence provided by Ramirez in the prosecution of former President Aleman; (4)
    there was no evidence that Ramirez had received threats from former President Aleman
    or his associates; and (5) there was no indication that Aleman or anyone else would have
    any interest in torturing him following his return. Having reviewed the record, we are
    confident that the BIA considered all of the evidence and properly applied the CAT
             The “clear probability standard” is equivalent to the “more likely than not
           standard.” See Gomez-Zuluaga v. Att’y Gen., 
    527 F.3d 330
    , 349 (3d Cir. 2008).
           We agree with the Government that we lack jurisdiction over the remainder of
    Ramirez’s petition. 8 U.S.C. § 1252(a)(2)(C). Accordingly, we deny the petition to the
    extent it argues that the IJ or the BIA misapplied the relevant legal standard to Ramirez’s
    CAT claim, and dismiss the remainder of the petition.