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Ortiz-Franco v. Holder

United States Court of Appeals for the Second Circuit

October 9, 2014, Argued; April 1, 2015, Decided

Docket No. 13-3610

Opinion

 [*83]  DENNIS JACOBS, Circuit Judge:

Elenilson J. Ortiz-Franco petitions for review of an order of the Bureau of Immigration Appeals ("BIA"), entered August 30, 2013, which affirmed the decision of Immigration Judge Noel A. Ferris ("IJ"), denying all relief, including relief on the sole basis that is the subject of this appeal: deferral of removal under the Convention Against Torture ("CAT"). We conclude that we lack jurisdiction to consider this petition for review because, ] when an otherwise removable alien is denied deferral of removal under the CAT, our jurisdiction is limited by 8 U.S.C. § 1252(a)(2)(C) and (D) to review of colorable constitutional claims and questions of law--and Ortiz-Franco raises none.1

Ortiz-Franco, a native and citizen of El Salvador, conceded [**3]  before the IJ that he was removable as an alien present in the United States without being admitted or paroled, i.e., illegally, and as an alien convicted of a controlled substance violation and a crime of moral turpitude. His contention is that, if he is returned to El Salvador, members of La Mara Salvatrucha street gang ("MS-13") would torture and kill him because of information he provided to federal prosecutors in a proffer session.

Ortiz-Franco applied for asylum, withholding of removal, and deferral of removal under the CAT. The IJ ruled that his witness tampering conviction rendered Ortiz-Franco ineligible for asylum and withholding of removal, and that he did not sustain his burden of demonstrating entitlement to CAT relief because he did not establish that it was more likely than not that he would be subject to torture in which the Salvadoran government would acquiesce. The BIA affirmed and dismissed the appeal. The petition presented to this Court challenges only the denial of deferral under the CAT.

BACKGROUND

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782 F.3d 81 *; 2015 U.S. App. LEXIS 5210 **

ELENILSON J. ORTIZ-FRANCO, Petitioner, - v.- ERIC H. HOLDER, JR., UNITED STATES ATTORNEY GENERAL, Respondent.

Subsequent History: US Supreme Court certiorari denied by Ortiz-Franco v. Lynch, 2016 U.S. LEXIS 798 (U.S., Jan. 19, 2016)

Prior History: Elenilson J. Ortiz-Franco petitions for review of an order of the Bureau of Immigration Appeals, entered August 30, 2013, which affirmed the decision of Immigration Judge Noel A. Ferris denying Ortiz-Franco deferral of removal under the Convention Against Torture ("CAT"). We lack jurisdiction to consider the petition for review because the jurisdictional limitations set forth in 8 U.S.C. § 1252(a)(2)(C) and (D) [**1]  apply when an otherwise removable alien is denied deferral of removal under the CAT, and Ortiz-Franco raises no colorable constitutional claims or questions of law. Accordingly, the petition for review is DISMISSED. Judge Lohier concurs in a separate opinion.

CORE TERMS

removal, deferral, alien, torture, final order, constitutional claim, gang, petition for review, question of law, judicial review, immigration, withholding, acquiesce, implement regulations, lack jurisdiction, deportation, convicted, asylum, criminal offense, order of removal, co-defendants, cooperated, quotation, proffer, merits, orders, raises, treaty, fight, marks

Immigration Law, Asylum, Refugees & Related Relief, Convention Against Torture, Judicial Proceedings, Jurisdiction, Deportation & Removal, Judicial Review, Civil Procedure, Jurisdiction, Subject Matter Jurisdiction, General Overview, Constitutional Law, Separation of Powers, International Law, Treaty Interpretation, Intent, Particular Treaties, Restriction on Removal, Exceptions to Removal Restriction, Asylum, Eligibility for Asylum, Administrative Law, Judicial Review, Reviewability, Reviewable Agency Action, Effect & Execution of Orders, Governments, Courts, Judicial Precedent, Dicta