Ramirez v. Attorney General of the United States

412 F. App'x 495
CourtCourt of Appeals for the Third Circuit
DecidedFebruary 10, 2011
DocketNo. 10-1137
StatusPublished

This text of 412 F. App'x 495 (Ramirez v. Attorney General of the 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
Ramirez v. Attorney General of the United States, 412 F. App'x 495 (3d Cir. 2011).

Opinion

OPINION

PER CURIAM.

Petitioner Octavio Ramirez petitions for review of the December 28, 2009 decision [496]*496of 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.

I.

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 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 Amoldo Aleman, the former president of Nicaragua. Ale-man 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.

II.

Although we generally lack jurisdiction to review final orders of removal against [497]*497aliens 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

III.

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 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. Mukasey, 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 and concluded that he had not established that it is well known within Nicaragua that [498]*498his 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.

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Related

Savchuck v. Mukasey
518 F.3d 119 (Second Circuit, 2008)
J-F-F
23 I. & N. Dec. 912 (Board of Immigration Appeals, 2006)

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412 F. App'x 495, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ramirez-v-attorney-general-of-the-united-states-ca3-2011.