Jaime Pinillos Prieto v. Attorney General United States

694 F. App'x 98
CourtCourt of Appeals for the Third Circuit
DecidedJune 5, 2017
Docket16-3962
StatusUnpublished

This text of 694 F. App'x 98 (Jaime Pinillos Prieto v. Attorney General United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jaime Pinillos Prieto v. Attorney General United States, 694 F. App'x 98 (3d Cir. 2017).

Opinion

OPINION *

PER CURIAM

The Board of Immigration Appeals issued a final order directing that Jaime Pinillos-Prieto, a native and citizen of Colombia, be removed from the United States. Pinillos-Prieto has petitioned us to review the Board’s order. We will dismiss the petition in part and deny the petition in part because Pinillos-Prieto has not raised any viable constitutional claims or legal questions.

Pinillos-Prieto entered the United States on a business visa in 2001. He was convicted in 2003 of federal drug-trafficking crimes, see Pinillos v. United States, 990 F.Supp.2d 83, 88 (D.P.R. 2013), and eventually received a sentence of 188 months’ imprisonment. That led the government to charge Pinillos-Prieto with removal as an alien convicted of an aggravated felony.

*100 Pinillos-Prieto sought withholding of removal before an Immigration Judge. In that proceeding, he argued that his conviction was invalid because it was based on the perjured testimony of two Drug Enforcement Administration informants who also worked with the Colombian police. Pinillos-Prieto also asserted that he feared torture at the behest of those two informants. Pinillos-Prieto’s fear was based on his beliefs that the two informants travel back and forth between the United States and Colombia, that they were involved in drug trafficking, and that they would track him down if he were forced to return home. The asserted motivation for that desire to harm Pinillos-Prieto was that the informants would not want their allegedly corrupt role in his trial to come to light. Pinillos-Prieto conceded, however, that neither informant had contacted him since his trial and that he did not know whether they were in Colombia. Pinillos-Prieto did not assert that any person would intend to harm him other than those two informants or their associates.

The IJ determined that Pinillos-Prieto was statutorily ineligible for withholding of removal under both the Immigration & Nationality Act, see 8 U.S.C. § 1231 (b)(3)(B)(ü), and the Convention Against Torture (“CAT”), see 8 C.F.R. § 1208.16(c)(4) and (d)(2), because his narcotics crime was an aggravated felony that was also a particularly serious crime. And while Pinillos-Prieto was still potentially eligible for deferral of removal under the CAT, see 8 C.F.R. § 1208.16(c)(4), the IJ concluded that Pinillos-Prieto had not established that it was more likely than not that he would be tortured if x-emoved to Colombia. The IJ thus denied all relief.

Pinillos-Prieto appealed to the Board and moved that the Board reopen his case to consider what he called additional evidence in support of his contention that he was innocent of his drug-trafficking crime. The Board dismissed the appeal as merit-less and denied the motion to reopen. Pi-nillos-Prieto then filed this petition for review.

We have jurisdiction to review final orders of removal under 8 U.S.C. § 1252(a). In cases involving criminal aliens who are deemed removable under § 1227(a)(2), like Pinillos-Prieto, the scope of our review is narrower. In such cases, we may entertain only constitutional claims and questions of law, and lack jurisdiction to review any factual or discretionary determinations. See 8 U.S.C. §§ 1252(a)(2)(C)-(D).

Pinillos-Prieto raises three main issues. First, he argues that the Board used the wrong legal standard concerning the meaning of acquiescence in torture, ignored evidence of acquiescence in the record, and applied the wrong standard of review to the IJ’s denial of deferral of removal. Second, he argues that his underlying aggravated-felony conviction is invalid. Third, he argues that the Board abused its discretion when it denied his motion to reopen.

We may readily dispose of the latter two arguments. Pinillos-Prieto’s contention that his 2008 drug-trafficking conviction is unlawful does not present a cognizable constitutional claim or legal issue, let alone a meritorious one: he may not collaterally attack his criminal judgment in removal proceedings. See Orabi v. Att’y Gen., 738 F.3d 535, 543 (3d Cir. 2014); Drakes v. INS, 330 F.3d 600, 603 (3d Cir. 2003). Nor does Pinillos-Prieto’s challenge to the Board’s discretionary denial of his motion to reopen present a constitutional claim or legal issue. See Cruz v. Att’y Gen., 452 F.3d 240, 246-47 (3d Cir. 2006).

Pinillos-Prieto’s merits argument that the Board applied the wrong legal *101 standard for torture claims and applied the wrong standard of review to the IJ’s decision, however, potentially raises a color-able constitutional or legal claim. Questions of law may encompass both “pure questions of law” and also “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) (internal quotation marks and citations omitted). Here, the question of what legal standard applies for torture claims and what standard of review the Board should apply to review such claims implicates a legal issue, and is not merely a disagreement with the agency’s underlying factual findings. We therefore have jurisdiction to consider that aspect of Pinillos-Prieto’s petition for review.

To succeed on a CAT claim, a petitioner must demonstrate “ ‘that it is more likely than not that he ... would be tortured if removed to the proposed country of removal.’ ” Sevoian v. Ashcroft, 290 F.3d 166, 174-75 (3d Cir. 2002) (quoting 8 C.F.R. § 1208.16(c)(2)). To provide a basis for relief, however, the torture must be “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). The IJ must first determine what is likely to happen to the petitioner, and then must determine whether those probable events amount to the legal definition of torture. Myrie v. Att’y Gen., 855 F.3d 509, 516-17 (3d Cir. 2017). The Board reviews the first question for clear error and reviews the second question de novo. Id.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
694 F. App'x 98, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jaime-pinillos-prieto-v-attorney-general-united-states-ca3-2017.