Saul Martinez v. Attorney General United States , 519 F. App'x 121 ( 2013 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_________________
No. 12-4059
SAUL CEJA MARTINEZ,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A071-981-882)
Immigration Judge: Honorable Andrew R. Arthur
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
May 22, 2013
Before: AMBRO, JORDAN and BARRY, Circuit Judges
(Opinion filed: May 31, 2013)
_________________
OPINION
_________________
PER CURIAM
Saul Ceja Martinez, a native and citizen of Mexico, was convicted in 2009 of the
offense of Conspiracy to Distribute Cocaine, in violation of 21 U.S.C. § 846. In 2012, he
was charged as removable as, among other things, an aggravated felon pursuant to 8
U.S.C. § 1227(a)(2)(A)(iii). Based on the record of conviction submitted by the
Department of Homeland Security, an Immigration Judge (―IJ‖) held that Martinez was
removable as charged.1 Martinez sought protection under the United Nations Convention
Against Torture (―CAT‖) and claimed that he would be subject to torture if he were
returned to Mexico because he provided information to federal and state authorities
concerning two of his co-conspirators.
After weighing the evidence—including Martinez‘s testimony and that of his
expert witness—the IJ found that the extent of Martinez‘s cooperation was unclear and
uncorroborated and that there was no evidence that one of his co-conspirators was
Mexican or that either co-conspirator was connected to any Mexican drug cartels. Thus,
the IJ held that Martinez had not demonstrated that it was more likely than not that he
would be tortured upon return to Mexico. Moreover, the IJ held that even if he had
demonstrated that his co-conspirators had ties to drug cartels, he still would not have
satisfied his burden because he did not show that such torture would be ―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.‖ 8 C.F.R. § 1208.18(a)(1). Martinez appealed to the Board
of Immigration Appeals (―BIA‖), which affirmed after adopting the IJ‘s decision and
summarizing the IJ‘s conclusions. He now petitions this Court for review.
1
The IJ also held that because Martinez is an aggravated felon, he is ineligible for asylum
or withholding of removal. Martinez has not challenged the finding of removability or
the determination that it renders him ineligible for other forms of relief before the Agency
or in this petition for review.
2
We have jurisdiction under 8 U.S.C. § 1252(a) to review final orders of removal.
Our review is of the BIA‘s ruling, but ―[w]e will review the immigration judge‘s opinion
to the extent it was adopted by the BIA.‖ Cham v. Att‘y Gen., 445 F.3d 683, 690 (3d Cir.
2006). Because Martinez was ordered removed due to a conviction for an aggravated
felony, our jurisdiction is limited to ―‗constitutional claims or questions of law.‘‖ Pierre
v. Att‘y Gen., 528 F.3d 180, 184 (3d Cir. 2008) (en banc) (citing 8 U.S.C.
§ 1252(a)(2)(C) & (D)). As a threshold matter, such claims must be colorable. Pareja v.
Att‘y Gen., 615 F.3d 180, 186 (3d Cir. 2010). ―To determine whether a claim is
colorable, we ask whether ‗it is immaterial and made solely for the purpose of obtaining
jurisdiction or is wholly insubstantial and frivolous.‘‖ Id. at 186–87 (quoting Arbaugh v.
Y & H Corp., 546 U.S. 500, 513 n.10 (2006)).
Martinez argues that the BIA erred in relying upon three cases from other circuits,
Ramsameachire v. Ashcroft, 357 F.3d 169 (2d Cir. 2004), Rashiah v. Ashcroft, 388 F.3d
1126 (7th Cir. 2004), and Almaghzar v. Gonzales, 457 F.3d 915 (9th Cir. 2006), that
were cited in support of the BIA‘s statement that ―[e]vidence of the possibility of torture
generally, does not meet the standard of establishing that it is more likely than not that a
particular alien would be targeted for such treatment.‖ A.R. 4. Martinez contends that
these cases prescribe an analytical framework for CAT claims that conflicts with our own
precedent, Berishaj v. Ashcroft, 378 F.3d 314 (3d Cir. 2004).
We disagree. Martinez suggests that the Ramsameachire was cited for the
proposition that CAT claims have an objective component which conflicts with our
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holding that ―CAT claims are entirely concerned with the objective likelihood of torture.‖
Berishaj, 378 F.3d at 332. This is simply incorrect: the BIA unambiguously cited
Ramsameachire for the proposition that an ―IJ must determine whether someone in the
alien‘s particular circumstances is more likely than not to be tortured.‖ A.R. 4.
Moreover, Ramsmeachire‘s holding that ―to prevail on a CAT claim the alien need only
proffer objective evidence [establishing] that he or she is likely to be tortured in the
future,‖ 357 F.3d at 185, is entirely consistent with our jurisprudence. See Berishaj, 378
F.3d at 332. Rashiah and Almaghzar also do not conflict with our precedent in any
relevant respect. Martinez argues that in contrast to Almaghzar, Berishaj requires
consideration of the frequency with which torture occurs to determine eligibility for relief
under the CAT. This too is simply incorrect; Berishaj noted only that the frequency with
which torture occurs was not sufficient on its own to ―compel the conclusion that [a
petitioner will] more likely than not suffer torture upon removal.‖ See Berishaj, 378 F.3d
at 333.
Martinez‘s arguments regarding the alternative holding that the Mexican
government has not acquiesced in torture are meritless because Martinez has not raised
any colorable legal or constitutional challenge to the BIA‘s conclusion that he is not
likely to be tortured in the first place. His remaining arguments, though couched in terms
of fundamental fairness and due process, plainly attack the weight the BIA afforded
Martinez‘s evidence. They are therefore beyond this Court‘s jurisdiction. See Cospito v.
Att‘y Gen., 539 F.3d 166, 170-71 (3d Cir. 2008).
4
As Martinez does not present any colorable constitutional claims or questions of
law, his petition for review is beyond the ambit of our limited jurisdiction. See 8 U.S.C.
§ 1252(a)(2)(C); Pareja, 615 F.3d at 186. We will dismiss it on that basis.
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