18-1764 Pamphile v. Garland BIA Mulligan, IJ A200 461 606 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 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 12th day of May, two thousand twenty-one.

PRESENT: DEBRA ANN LIVINGSTON, Chief Judge, DENNY CHIN, RAYMOND J. LOHIER, JR., Circuit Judges. _____________________________________

JAMES PAMPHILE, Petitioner,

v. 18-1764 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Gary J. Mennitt, Deborah Kemi Martin, Dechert LLP, New York, NY.

FOR RESPONDENT: Brian M. Boynton, Acting Assistant Attorney General; Leslie McCay, Senior Litigation Counsel; Colin J. Tucker, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.

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 DENIED.

Petitioner James Pamphile, a native and citizen of Haiti,

seeks review of a May 15, 2018, decision of the BIA affirming

a September 12, 2017, decision of an Immigration Judge (“IJ”)

denying Pamphile’s application for withholding of removal,

and relief under the Convention Against Torture (“CAT”). In

re James Pamphile, No. A 200 461 606 (B.I.A. May 15, 2018),

aff’g No. A 200 461 606 (Immig. Ct. N.Y. City Sept. 12, 2017).

We assume the parties’ familiarity with the underlying facts

and procedural history.

We have reviewed both the IJ’s and BIA’s decisions “for

the sake of completeness.” Wangchuck v. Dep’t of Homeland

Sec.,

(2d Cir. 2006). The Immigration and

Nationality Act,

(a)(2)(C), provides that “no

court shall have jurisdiction to review any final order of

removal against an alien who is removable by reason of having 2 committed a criminal offense covered in section . . .

1227(a)(2)(A)(iii),” that is, an aggravated felony as set

forth in

(a)(43). See

(a)(2)(A)(iii). This “criminal alien bar,” Foster v.

INS,

(2d Cir. 2004), applies here because

Pamphile was ordered removed for aggravated felonies.

Accordingly, our review of his removal order is limited to

“constitutional claims or questions of law.”

(a)(2)(D). However, this jurisdictional limitation

does not apply to our review of CAT claims. See Nasrallah v.

Barr,

, 1692 1694 (2020). We have

previously held that the jurisdictional limit does apply to

withholding of removal claims, see Ortiz-Franco v. Holder,

(2d Cir. 2015), but the Supreme Court left

open the question of whether we retain jurisdiction over the

denial of withholding of removal in Nasrallah. For purposes

of this case, we assume arguendo that the criminal alien bar

does not apply to either withholding of removal or CAT relief,

and we deny the petition on the merits as discussed below.

3 Withholding of Removal

We find no error in the agency’s conclusion that Pamphile

is ineligible for withholding of removal. “[T]he Attorney

General may not remove an alien to a country if the Attorney

General decides that the alien’s life or freedom would be

threatened in that country because of the alien’s race,

religion, nationality, membership in a particular social

group, or political opinion.”

(b)(3). An

applicant is ineligible for withholding of removal if he has

been convicted of a “particularly serious crime.”

§ 1231(b)(3)(B)(ii). Where, as here, an applicant’s

conviction is not per se particularly serious, id.

§ 1231(b)(3)(B), the agency considers the following factors:

“(1) the nature of the conviction, (2) the circumstances and

underlying facts of the conviction, (3) the type of sentence

imposed and (4) whether the type and circumstances of the

crime indicate that the alien will be a danger to the

community.” Nethagani v. Mukasey,

(2d Cir.

2008) (internal quotation marks and citations omitted).

The IJ applied the proper factors and reasonably

determined that Pamphile’s conviction for attempted assault

4 in the first degree in violation of New York Penal Law §§

110, 120.10(1) was particularly serious under the

circumstances. Pamphile pleaded guilty to attempted assault

under this provision, which requires “intent to cause serious

physical injury” and causing such injury “by means of a deadly

weapon or dangerous instrument,” for which he received a 42-

month sentence of imprisonment. To the extent that Pamphile

argues the agency should have placed greater weight on an

assessment that he posed a low risk of violence and suffers

from post-traumatic stress disorder, the weight afforded to

the evidence is within the agency’s discretion. See Xiao Ji

Chen v. U.S. Dep’t of Justice,

(2d Cir.

2006); see Y.C. v. Holder,

(2d Cir. 2013).

There is also no evidence in the record, contrary to

Pamphile’s assertion, that the IJ improperly considered

Pamphile’s history of anger management treatment in

determining that Pamphile had committed a “particularly

serious crime.” For these reasons, we find no error and

affirm the decision of the BIA to deny Pamphile’s petition

for withholding of removal.

5 Deferral of Removal Under the CAT

An applicant for CAT deferral must “establish that it is

more likely than not that he . . . would be tortured if

removed to the proposed country of removal.”

(c)(2), 1208.17(a). Torture is defined as “any act

by which severe pain or suffering, whether physical or mental,

is intentionally inflicted on a person . . . by or at the

instigation of or with the consent or acquiescence of a public

official or other person acting in an official capacity.”

§ 1208.18(a)(1). We review the denial of CAT relief

“under the deferential substantial-evidence standard.”

Nasrallah, 140 S. Ct. at 1692–93.

The agency concluded that Pamphile failed to establish

that he would more likely than not be tortured on account of

his status as a gay, HIV-positive, criminal deportee. The

record does not compel a contrary conclusion. The evidence

before the agency reflected that criminal deportees are

generally not subject to mandatory detention upon arrival in

Haiti. And the absence of medical care or different medical

care does not, without more, reflect an intent to torture.

See Pierre v. Gonzales,

(2d Cir. 2007); see

6 also

(a)(1) (“Torture is defined as any act

by which severe pain or suffering, whether physical or mental,

is intentionally inflicted on a person . . . at the

instigation of or with the consent or acquiescence of a public

official or other person acting in an official capacity.”).

Although there is evidence that LGBTI individuals in Haiti

suffer discrimination and sometimes physical violence, the

State Department Report considered by the agency indicates

there were no reports of Haitian officials actively

perpetrating or condoning violence against members of the

LGBTI community. We defer to the agency’s weighing of

evidence. See Y.C.,

; Siewe v. Gonzales,

(2d Cir. 2007) (“Where there are two permissible

views of the evidence, the factfinder’s choice between them

cannot be clearly erroneous.” (internal quotation marks

omitted)). Because Pamphile had the burden to show that he

would more likely than not suffer intentional harm rising to

the level of torture, the agency did not err in denying his

CAT claim on this record. See

(c)(2),

1208.18(a)(1).

7 For the foregoing reasons, the petition for review is

DENIED. All pending motions and applications are DENIED and

stays VACATED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

8