Lomtadze v. Lynch

U.S. Court of Appeals for the Second Circuit
Lomtadze v. Lynch, 628 F. App'x 55 (2d Cir. 2016)

Lomtadze v. Lynch

Opinion

PRESENT: DENNIS JACOBS, DEBRA ANN LIVINGSTON and GERARD E. LYNCH, Circuit Judges.

SUMMARY ORDER

Petitioner Giorgi Lomtadze, a native of the former Soviet Union and a citizen of Georgia, seeks review of a September 18, 2014, decision of the BIA affirming an April 9, 2014, decision of an Immigration Judge (“IJ”) denying Lomtadze’s application for withholding of removal and relief under the Convention Against Torture (“CAT”). In re Giorgi Lomtadze, No. A057 326 857 (B.I.A. Sept. 18, 2014), aff'g No. A057 326 857 (Immig. Ct. Fishkill Apr. 9, 2014). We assume the parties’ familiarity with the underlying facts and procedural history in this case.

We have reviewed both the IJ’s and the BIA’s opinions “for the sake of completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir. 2008) (quoting Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006)). The applicable standards of review are well established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

Our review is limited to constitutional claims and questions of law because Lom-tadze is removable based on his conviction of an aggravated felony. 8 U.S.C. § 1252(a)(2)(C), (D); Ortiz-Franco v. Holder, 782 F.3d 81, 86 (2d Cir. 2015) (holding that “criminal bar” to oúr jurisdiction extends to CAT deferral).

With respect to the agency’s denial of deferral of removal under the CAT, Lom-tadze raises no constitutional claim or question of law. He challenges only the agency’s finding that he did not establish a likelihood of being tortured in Georgia; however, the likelihood of a future occurrence is a finding of fact. Hui Lin Huang v. Holder, 677 F.3d 130, 134 (2d Cir. 2012). Consequently, we lack jurisdiction to consider this claim.

. With respect to withholding of removal, Lomtadze advances two arguments: that the agency failed to consider the sentence imposed, and that the agency credited the Pre-Sentence Report over his testimony. We lack jurisdiction to consider the latter, as it is a challenge to the agency’s factual determinations and weighing of evidence. 8 U.S.C. § 1252(a)(2)(C), (D); Argueta v. Holder, 617 F.3d 109, 112-13 (2d Cir. 2010).

Regarding the former, whether the agency has failed to consider the relevant factors is a question of law. Cf. Argueta, 617 F.3d at 113 (“Argueta’s contention that the IJ weighed factors that the IJ was prohibited from considering is quite distinct from the unreviewable argument that the IJ balanced improperly those factors that the IJ could consider.”). However, a review of the record indicates that the agency adequately considered the sentence imposed, particularly in light of agency precedent that “the sentence imposed is not a dominant factor in determining whether a conviction is for a particularly serious crime.” In re N-A-M-, 24 I. & N. Dec. 336, 343 (B.I.A. 2007).

For the foregoing reasons, the petition for review is DISMISSED in part and DENIED in part.

Reference

Full Case Name
Giorgi LOMTADZE, Petitioner, v. Loretta E. LYNCH, United States Attorney General, Respondent
Status
Unpublished