Ortiz-Franco v. Holder

• Decision Date: 01 April 2015
• Docket Number: Docket No. 13–3610.
• Citation: 782 F.3d 81
• Parties: Elenilson J. ORTIZ–FRANCO, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

782 F.3d 81

Elenilson J. ORTIZ–FRANCO, Petitioner

v.Eric H. HOLDER, Jr., United States Attorney General, Respondent.

Docket No. 13–3610.

United States Court of Appeals, Second Circuit.

Argued: Oct. 9, 2014.

Decided: April 1, 2015.

Lee P. Gelernt, American Civil Liberties Foundation, Immigrants' Rights Project (with Dror Ladin, American Civil Liberties Foundation, Immigrants' Rights Project and Genet Getachew, Law Office of Genet Getachew), New York, N.Y., for Petitioner.

Jesse M. Bless, Trial Attorney, United States Department of Justice, Civil Division, Office of Immigration Litigation (with David B. Bernal, Director, Stuart F. Delery, Acting Associate Attorney General and Anthony C. Payne, Senior Litigation Counsel), Washington, D.C., for Respondent.

Before: JACOBS, LOHIER, and DRONEY, Circuit Judges.

Opinion

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 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

Ortiz–Franco entered the United States illegally in 1987. Between 1992 and 1996, he was convicted of: criminal possession of a weapon in the third degree, a class D Armed Violent Felony under New York law; attempted petit larceny; and possession of a controlled substance. See N.Y. Penal Law §§ 265.02, 110, 155.25, 220.03.

In July 2005, the Department of Homeland Security (“DHS”) served Ortiz–Franco with a Notice to Appear in removal proceedings, alleging that he was removable as an alien present in the United States without being admitted or paroled. See 8 U.S.C. § 1182(a)(6)(A)(i). At an initial hearing, Ortiz–Franco conceded removability on the charged ground. In October 2005, DHS additionally alleged that Ortiz–Franco was subject to removal as an alien convicted of violating a law related to a federally controlled substance. See id. § 1182(a)(2)(A)(i)(II). A superseding charging document, filed in April 2006, charged that Ortiz–Franco was subject to removal as an “alien convicted of ... a crime involving moral turpitude.” See id. § 1182(a)(2)(A)(i)(I). Ortiz–Franco conceded removability on these additional grounds.

This petition arises from an order issued years later, following intervening events recounted below.

Ortiz–Franco joined MS–13 in 2008. He and other members were later indicted on federal charges in connection with a fight with a rival gang. Ortiz–Franco attended a proffer session in which he stated that: his co-conspirators were members of MS–13; they started the fight “and were displaying MS–13 hand signs and saying ‘La Mara, La Mara,’ ”; one of the people they were fighting was a former MS–13 member; Ortiz–Franco and his co-conspirators had snorted cocaine before the fight; and certain of his co-conspirators provided “muscle” for a drug dealer. The government did not credit Ortiz–Franco's account as “completely truthful and accurate,” declined to hold further proffer sessions, and offered him no cooperation agreement.

Since Ortiz–Franco's proffer statements might have been admissible at trial, the government gave copies to his co-defendants. Thereafter, defense counsel told the government that Ortiz–Franco had “concerns about being deported to El Salvador, because of the MS–13's perception, albeit inaccurate, that he cooperated with the government.”

The case against Ortiz–Franco expanded into a prosecution in which defendants were charged with (inter alia ) murder, racketeering, conspiracy to distribute cocaine, and witness tampering. Ortiz–Franco ultimately pleaded guilty to witness tampering and was sentenced principally to 24 months' imprisonment.

Ortiz–Franco's removal hearing resumed in 2012 and continued in 2013. He faced limited options, given his criminal record and previously-conceded removability. Accordingly, he applied for deferral of removal under the CAT. In support of his application, he submitted: an affidavit and an additional written statement; background information on gang violence and country conditions in El Salvador; and a letter from the United States Attorney's Office for the Eastern District of New York. The letter did “not dispute that the statements made by [Ortiz–Franco] regarding the MS–13 and members of that street gang may put him in some danger, if he is deported to El Salvador” because of “MS–13's perception, albeit inaccurate, that he cooperated with the government;” the government did not object to a stay of deportation.

Ortiz–Franco offered inconsistent testimony. At one point, he said he joined MS–13 by invitation after he met members of the gang at a bar he frequented; later, he said that the members forced him to join. He first denied being involved in the gang fight that led to the 2009 prosecution; subsequently he testified that he punched his rival after being insulted and seeing his rival “coming toward [him].” As to the witness tampering to which he pleaded guilty, Ortiz–Franco disclaimed wrongdoing and stated that he pleaded guilty because he was pressured to do so by federal agents who “scared [his] children” and told them that he would lose them if he went to trial and would not see them for many years.

As to his CAT claim, Ortiz–Franco testified that: his co-defendants told him he was “in trouble” for “ratting on them,” which he understood to mean that “they could kill [him]”; his co-defendants “had the information [he] had given to the federal agents” and had “made copies of that paper [and] ... give[n] [it] to other [MS–13] members who were in the prison”; and, although he could not name those who had threatened him, they made the MS–13 hand sign.

Asked how he knew that his perceived cooperation would be disclosed to MS–13 members in El Salvador, Ortiz–Franco “imagine[d]” his co-defendants had “contacts” there “because [MS–13] is a big gang.” Although Ortiz–Franco testified that gang members “must have sent copies” of the proffer documents to contacts in El Salvador, he had no proof of it.

Ortiz–Franco asserted that the police in El Salvador would not protect him because he was a gang member. The IJ explained that “CAT deferral does not stretch under Board precedent ... [to] a situation where the police cannot protect someone,” but rather requires proof that the government would acquiesce in the torture, and urged Ortiz–Franco's counsel to “deal[ ] with that issue.” Counsel inquired of Ortiz–Franco whether, “[b]esides the gangs[,] ... any other agency or organization will cause you problems”; Ortiz–Franco replied, “no.” Specifically, though Ortiz–Franco was afraid of MS–13, he was “not afraid of the government” or the police in El Salvador, and did not know of any connections between or among MS–13, the Salvadoran government, and his co-defendants.

The IJ doubted Ortiz–Franco's truthfulness during the proceedings and ruled that Ortiz–Franco failed to establish that “he would be identified as a turncoat MS–13 member by anyone,” that the Salvadoran government would punish or harm him or that “MS–13 has the ability to influence government authorities in El Salvador.” To the contrary, the IJ found that “according to background evidence, there has actually been an attempt to broker peace ... in El Salvador between the gangs”; that the government was seeking to “protect the people of El Salvador”; and that no evidence “suggest[s] that [the Salvadoran government] would acquiesce in harm perpetuated against [Ortiz–Franco] if he were to return to that country.” The IJ denied the application for deferral of removal under the CAT, which permitted Ortiz–Franco to be removed.

The BIA affirmed. Specifically, the BIA upheld the IJ's key determinations: Ortiz–Franco “did not establish [that] he will be identified by anyone in El Salvador as an MS–13 member who cooperated with law enforcement officials in the United States,” that it is “more likely than not that he will experience harm meeting the definition of torture” in El Salvador, or “that the government of El Salvador will acquiesce to any harm caused to [Ortiz–Franco] by criminal gangs unaffiliated with the government.”

The petition for review argues that, as to denial of deferral, the agency erred in concluding that he did not show the requisite likelihood of torture or that any torture by gang members would occur with the acquiescence of El Salvador. The government counters that this Court lacks jurisdiction to consider the petition for...