12‐711‐ag Doe v. Lynch

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

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 COURTʹS 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 ʺSUMMARY ORDERʺ). A PARTY CITING 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 10th day of December, two thousand fifteen.

PRESENT: ROBERT D. SACK, DENNY CHIN, SUSAN L. CARNEY, Circuit Judges.

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JOHN DOE, Petitioner,

v. 12‐711‐ag

LORETTA E. LYNCH, United States Attorney General, Respondent.

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FOR PETITIONER: JUSTIN CONLON, North Haven, CT.

FOR RESPONDENT: MICHAEL C. HEYSE, Trial Attorney, Office of Immigration Litigation; Benjamin C. Mizer, Acting Assistant Attorney General, Civil Division; Mary Jane Candaux, Assistant Director, Office of Immigration Litigation, United States Department of Justice, Washington, D.C.

FOR AMICI CURIAE: TRINA REALMUTO, National Immigration Project of the National Lawyers Guild, for Amici Curiae National Immigration Project of the National Lawyers Guild and Immigrant Defense Project, Boston, MA.

UPON DUE CONSIDERATION of this petition for review of a decision

of the Board of Immigration Appeals (ʺBIAʺ), it is hereby ORDERED, ADJUDGED,

AND DECREED that the petition for review is DENIED.

John Doe,1 a native and citizen of the Dominican Republic, seeks review of

a February 8, 2012 order of the BIA affirming the December 2, 2009, decision of an

Immigration Judge (ʺIJʺ), which denied his motion to reopen. In re John Doe, No. A078

391 324 (B.I.A. Feb. 8, 2012), affʹg No. A078 391 324 (Immig. Ct. Hartford Dec. 2, 2009).

We assume the partiesʹ familiarity with the underlying facts, the procedural history of

the case, and the issues on appeal.

We review the BIAʹs denial of a motion to reopen for abuse of discretion,

including its finding that a movant failed to establish prima facie eligibility for the

1 Pursuant to Petitionerʹs unopposed motion, his name has been redacted from the docket.

2 underlying relief sought. See Kaur v. BIA,

(2d Cir. 2005); see also INS v.

Abudu,

, 104‐05 (1988). ʺAn abuse of discretion may be found in those

circumstances where the Boardʹs decision provides no rational explanation, inexplicably

departs from established policies, is devoid of any reasoning, or contains only summary

or conclusory statements; that is to say, where the Board has acted in an arbitrary or

capricious manner.ʺ Kaur, 413 F.3d at 233‐34 (quoting Zhao v. DOJ,

, 93 (2d

Cir. 2001)). We find no abuse of discretion in this case.

Initially, because Doe is removable based on a conviction for an

aggravated felony and controlled substance offense, our jurisdiction to review the BIAʹs

denial of his motion to reopen is limited to constitutional claims and questions of law.

See

(a)(2)(C), (D); Durant v. INS,

(2d Cir. 2005); see also

Ortiz‐Franco v. Holder,

(2d Cir. 2015). Accordingly, we may review Doeʹs

arguments that he established, or will establish in reopened proceedings, his statutory

eligibility for withholding of removal and relief under the Convention Against Torture

(ʺCATʺ). See

(a)(2)(D); Richmond v. Holder,

(2d Cir. 2013)

(ʺWe have jurisdiction to examine, as a question of law, a petitionerʹs statutory

eligibility for relief from removal.ʺ).

On appeal, Doe argues that the agency erred by (1) failing to consider his

cooperation with prosecutors as a circumstance mitigating the presumption that his

drug trafficking conviction was a particularly serious crime, (2) applying a heightened

3 legal standard as opposed to a prima facie eligibility standard to his motion to reopen

and misstating the willful blindness standard, and (3) failing to explain how its CAT

jurisprudence is consistent with its obligations under the United Nations Convention

Against Transnational Organized Crime (ʺCATOCʺ) and a ʺstate‐created dangerʺ

theory. We address each argument in turn.

A. Particularly Serious Crime Determination

As the agency found, Doe failed to establish his prima facie eligibility for

withholding of removal because he was convicted of trafficking large quantities of

controlled substances. Matter of Y‐L‐, A‐G‐, & R‐S‐R‐,

(A.G. 2002)

(hereinafter ʺMatter of Y‐L‐ʺ), overruled on other grounds by Khouzam v. Ashcroft,

, 170‐71 (2d Cir. 2004). Doe does not contend that the agency misapplied the

standard set forth in Matter of Y‐L‐, but asserts that the standard is not entitled to

deference because the Attorney General unreasonably declined to consider cooperation

with prosecutors as a circumstance mitigating the strong presumption that drug

trafficking aggravated felonies are particularly serious crimes. When reviewing the

Attorney Generalʹs interpretation of the Immigration and Nationality Act, we defer to

the agencyʹs interpretation so long as it is reasonable in light of the two‐step analysis set

forth in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,

(1984).

Here, the withholding of removal statute does not define ʺparticularly serious crime,ʺ

and the phraseʹs meaning is ambiguous. See, e.g., Mei Fun Wong v. Holder,

,

4 74 (2d Cir. 2011). The Attorney Generalʹs creation of strong presumptions involving

drug trafficking convictions was a reasonable interpretation of the statute because the

text itself provides the Attorney General with discretion to make the determination. See

(b)(3)(B)(ii) (ʺSubparagraph (A) does not apply … if the Attorney General

decides that . . . the alien, having been convicted of . . . a particularly serious crime is a

danger to the community of the United Statesʺ and ʺ[the per se category of particularly

serious crimes] shall not preclude the Attorney General from determining that,

notwithstanding the length of sentence imposed, an alien has been convicted of a

particularly serious crime.ʺ (emphases added)); Miguel‐Miguel v. Gonzales,

(9th Cir. 2007).

Amici Curiae argue that the agency erred because it should have

conducted a separate analysis as to whether Doe is a danger to the community. This

argument fails as a matter of law. The BIA has held that the determination of whether

an individual poses a danger to the community is subsumed in the analysis of whether

the crime is particularly serious; this Court has deferred to that holding under Chevron.

See Flores v. Holder,

(2d Cir. 2015) (ʺWe have accorded Chevron

deference … to the BIAʹs interpretation that no separate danger to the community

analysis is required when determining whether a crime is particularly serious.ʺ);

Nethagani v. Mukasey,

, 154 n.1 (2d Cir. 2008) (ʺ[T]he BIA has held that [an]

alien [convicted of a particularly serious crime] necessarily constitutes ʹa danger to the

5 community of the United States.ʹ We have accepted the BIAʹs interpretation of the

statute.ʺ (citing Ahmetovic v. INS,

, 52‐53 (2d Cir. 1995))). We are bound by

these decisions ʺunless and until the precedents established therein are reversed en banc

or by the Supreme Court.ʺ United States v. Jass,

(2d Cir. 2009).

B. Prima Facie Evidentiary Standard and Willful Blindness

The agency also reasonably determined that Doe failed to establish his

prima facie eligibility for CAT relief. Contrary to Doeʹs contention, the BIA correctly

applied the prima facie evidentiary standard for motions to reopen and concluded that

Doe could not establish CAT eligibility. Poradisova v. Gonzales,

(2d Cir.

2005) (holding that a movant must demonstrate ʺa realistic chanceʺ that he could

establish eligibility). While the BIA correctly stated the willful blindness evidentiary

standard in one sentence and then misstated it in the following sentence, see Khouzam,

(requiring government officials to ʺknow of or remain willfully blind to

an act [of torture]ʺ (emphasis added)), remand for the BIA to address the error is not

necessary. Its alternate finding, that Doeʹs CAT claim was too speculative, was not

tainted by this error. See Xiao Ji Chen v. DOJ,

(2d Cir. 2006).

Apart from these questions of law, Doe argues that that he sufficiently

established prima facie eligibility for CAT relief because the evidence showed that his co‐

defendant had both means and motive to bribe corrupt Dominican officials, the

Dominican Republic suffers from widespread drug violence, and some corrupt officials

6 had accepted bribes from drug traffickers in the past. We lack jurisdiction to review

this evidentiary‐based challenge, because the likelihood of a future event is a finding of

fact. See Hui Lin Huang v. Holder,

, 134‐35 (2d Cir. 2012).

C. Doeʹs CATOC and ʺState‐Created Dangerʺ Claims

Doe concedes that the CATOC provides no independent ground for relief

in removal proceedings, as this Court has held. See Doe v. Holder,

, 255‐57

(2d Cir. 2014) (holding CATOC is not self‐executing and requires implementation

through domestic legislation); see also Matter of G‐K‐,

(B.I.A. 2013)

(holding that CATOC does not provide independent grounds for relief and its

objectives are already advanced through existing immigration laws). He contends,

however, that remand is appropriate because in Matter of G‐K‐, the BIA failed to explain

how its CAT jurisprudence is consistent with the United Statesʹ obligations under

CATOC and a ʺstate created dangerʺ theory. Doe provides no legal authority, however,

for his contention that given CATOC, the BIA should disregard the burden of proof

required to sustain a CAT claim. See

(c)(2). He therefore has identified

no basis for challenging the IJʹs conclusion. We see no reason to disagree with the BIAʹs

conclusion that a state‐created danger theory does not provide a valid basis for

reopening Doeʹs removal proceedings. See Kamara v. Attʹy Gen.,

, 216‐18 (3d

Cir. 2005).

7 For the foregoing reasons, the petition for review is DENIED. As we have

completed our review, the pending motion for a stay of removal in this petition is

DENIED as moot.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

8