14-1136 Etienne v. Holder BIA Straus, IJ A025 452 809 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

CORRECTED 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 29th day of April, two thousand fifteen.

PRESENT: ROBERT A. KATZMANN, Chief Judge, REENA RAGGI, DENNY CHIN, Circuit Judges. _____________________________________

JUNIOR ETIENNE, Petitioner,

v. 14-1136 NAC

LORETTA E. LYNCH, U.S. ATTORNEY GENERAL, Respondent.1 _____________________________________

FOR PETITIONER: Gregory C. Osakwe, Hartford, Connecticut.

1 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Loretta E. Lynch is automatically substituted for former Attorney General Eric H. Holder, Jr. FOR RESPONDENT: Joyce R. Branda, Acting Assistant Attorney General; Michelle G. Latour, Deputy Director; Victor M. Lawrence, Senior Litigation Counsel, United States Department of Justice, Civil Division, Office of Immigration Litigation, Washington, D.C.

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

DISMISSED.

Petitioner Junior Etienne, a native and citizen of Haiti,

seeks review of a March 31, 2014, decision of the BIA affirming

a December 19, 2013, decision of an Immigration Judge (“IJ”)

denying Etiennes’s application for deferral of removal under

the Convention Against Torture (“CAT”). In re Junior Etienne,

No. A025 452 809 (B.I.A. Mar. 31, 2014), aff’g No. A025 452 809

(Immig. Ct. Hartford Dec. 19, 2013). We assume the parties’

familiarity with the underlying facts and procedural history

in this case.

Under the circumstances of this case, we review the IJ’s

decision as supplemented by the BIA’s decision. See Yan Chen

v. Gonzales,

(2d Cir. 2005). The applicable

2 standards of review are well established. See

(b)(4)(B); Yanqin Weng v. Holder,

(2d

Cir. 2009).

Under

(a)(2)(C) and (D), we lack

jurisdiction to review any final order of removal against an

alien who, like Etienne, is removable by reason of having

committed an aggravated felony unless the petition raises

“colorable constitutional claims or questions of law.”

Ortiz-Franco v. Holder, No. 13-3610, --- F.3d ---,

(2d Cir. Apr. 1, 2015).

Etienne asserts that the BIA violated due process by not

considering the evidence that he submitted on appeal. While

this is a constitutional claim, it is not colorable. The BIA

was not obligated to consider evidence submitted for the first

time on appeal. See De La Rosa v. Holder,

, 108

n.2 (2d Cir. 2010);

(d)(3)(iv). This is

particularly true where, as here, the evidence was immaterial

to whether Etienne would be tortured. Garcia-Villeda v.

Mukasey,

(2d Cir. 2008) (holding due process

violation requires showing “some cognizable prejudice”

(internal quotation marks omitted)).

3 Etienne also asserts that the BIA applied an incorrect

legal standard. Whether the agency applied the correct legal

standard is a reviewable question of law, see Acharya v. Holder,

, 299 n.4 (2d Cir. 2014); however, this claim is

also not colorable. The BIA applied the correct standard:

that Etienne had to show that he would “more likely than not”

be tortured in Haiti “by or at the instigation of or with the

consent or acquiescence of a public official or other person

acting in an official capacity.”

(a),

1208.18(a)(1).

For the foregoing reasons, the petition for review is

DISMISSED. As we have completed our review, any stay of removal

that the Court previously granted in this petition is VACATED,

and any pending motion for a stay of removal in this petition

is DENIED as moot. Any pending request for oral argument in

this petition is DENIED in accordance with Federal Rule of

Appellate Procedure 34(a)(2), and Second Circuit Local Rule

34.1(b).

FOR THE COURT: Catherine O=Hagan Wolfe, Clerk

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