Ventura-Reyes v. Lynch

• Decision Date: 26 May 2015
• Docket Number: No. 14–3237.,14–3237.
• Citation: 797 F.3d 348
• Parties: Jose VENTURA–REYES, Petitioner, v. Loretta E. LYNCH, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

797 F.3d 348

Jose VENTURA–REYES, Petitioner

v.Loretta E. LYNCH, Attorney General, Respondent.

No. 14–3237.

United States Court of Appeals, Sixth Circuit.

Argued: Jan. 20, 2015.

Decided and Filed: May 26, 2015.^*

ARGUED:Jason T. Lorenzon, Lorenzon Law, LLC, Independence, Ohio, for Petitioner. Victor M. Lawrence, United States Department of Justice, Washington, D.C., for Respondent. ON BRIEF:Jason T. Lorenzon, Lorenzon Law, LLC, Independence, Ohio, for Petitioner. Victor M. Lawrence, United States Department of Justice, Washington, D.C., for Respondent.

Before: MERRITT, STRANCH, and DONALD, Circuit Judges.

OPINION

BERNICE BOUIE DONALD, Circuit Judge.

Petitioner Jose Ventura–Reyes (“Ventura–Reyes”) seeks judicial review of a final removal order of the Board of Immigration Appeals (“BIA”). That order dismissed his appeal of an Immigration Judge's (“IJ's”) order denying his application for deferral from removal under the United Nations Convention Against Torture (“CAT”). For the reasons stated herein, we DENY the petition in part and DISMISS the remainder for lack of jurisdiction.

I.

Ventura–Reyes, a citizen of the Dominican Republic, first entered the United States through Puerto Rico on or around December 28, 1989, and obtained lawful permanent residence on March 3, 1994. On October 6, 2011, Ventura–Reyes was convicted of attempted possession and conspiracy to possess with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. § 846. On October 9, 2012, a Notice to Appear was issued stating Ventura–Reyes was removable on the basis of his criminal convictions. Ventura–Reyes pursued his only available option for relief—deferral of removal under the CAT—based on alleged fear of torture upon removal to the Dominican Republic.See 8 C.F.R. §§ 1208.17(a), 1208.18(a)(1).

Ventura–Reyes' fear of torture upon removal stems from two claims: (1) a politically influential Dominican family allegedly believes that he is responsible for the murder of their patriarch, Julian Peguero Rojas (aka “Chito” or “Peguero”) on September 25, 1989, in the Dominican Republic; and (2) Ventura–Reyes was an informant for the U.S. Drug Enforcement Administration (“DEA”), allegedly resulting in the arrests of members of the drug-trafficking Gonzalez Molina family, which seeks revenge against him. We discuss the facts concerning each claim separately below.

A.

Ventura–Reyes' first claim arose on or around September 24, 1989, which was election day in his hometown of Angelina Cotue¹ in the Dominican Republic. Ventura–Reyes' politically-active aunt, Anadalia Almanza Reyes became embroiled in a physical altercation over alleged voter fraud with Vicente Varet, Eujenio Montilla, and Lucito Peguero, who were members or affiliates of the Peguero family, and belonged to a rival political party. On September 25, 1989, Lucito Peguero and his cousin—who lived on the same street as Anadalia Almanza Reyes—became drunk and allegedly went to her house and attempted to kill her. A friend informed Ventura–Reyes—who was elsewhere at the time—of the attack. Ventura–Reyes went directly to his aunt's home. Arriving at the same time as his uncle, Rafael Almanza Reyes, Ventura–Reyes found his aunt wounded

and learned what happened. At some point, several more members or affiliates of the Peguero family arrived and attacked the Reyes family, including Ventura–Reyes, his aunt, his uncle, and his cousin. When the fight moved outdoors to the front yard, Rafael Almanza Reyes, who had a gun, fired several shots into the air. When the Pegueros saw he had a gun, they attempted to wrest it from him. Ventura–Reyes testified before the IJ that a Peguero family member attacked Rafael Almanza Reyes with a machete. Rafael Almanza Reyes attempted to shoot his assailant but instead shot and killed Julian Peguero Rojas, the patriarch of the Peguero family. Julian Peguero Rojas' family then attacked Rafael Almanza Reyes and tried to take the gun from him. Pursued by various members of the Peguero family, Rafael Almanza Reyes gave the gun to Ventura–Reyes. When the Peguero family saw Ventura–Reyes with the gun, they turned their attention to him. Ventura–Reyes was hit in the knee and knocked forward. He tried to shoot the gun, but it was out of bullets.

The fight eventually ceased when two armed state agents (either police or national guard) arrived on the scene to protect the Reyes family and Anadalia Almanza Reyes' house. Ventura–Reyes, along with his aunt, uncle, and a cousin, were taken to the hospital. Ventura–Reyes was released in five hours, after the wound

to his knee was treated, but the rest of his family suffered more serious injuries and were hospitalized for several days. Ventura–Reyes was detained and questioned by police during their investigation into the death of Julian Peguero Rojas. Ventura–Reyes was ultimately released unharmed after 24 to 48 hours. Upon release from the hospital, Rafael Almanza Reyes was charged with the death of Julian Peguero Rojas, arrested, and taken to jail by police.

Ventura–Reyes alleges that the Peguero family blames him for the fatal shooting of Julian Peguero Rojas and are intent on kidnapping or killing him. Consequently, Ventura–Reyes went into hiding some distance from Angelina Cotue. With financial help from his father, Ventura–Reyes left his hide-out on November 27, 1989, and traveled to Lamisa La Meche—about 30–40 miles from the capital, Santo Domingo. Around December 24, 1989, Ventura–Reyes traveled by boat with a group of more than 100 people to Yauco, Puerto Rico, arriving on December 28, 1989.² Ventura–Reyes left Puerto Rico on March 16, 1990, to join his wife³ and uncles, who were living in New York. On March 3, 1994, Ventura–Reyes obtained lawful permanent residence in the United States through his wife.

Since his arrival in the United States, Ventura–Reyes has returned to the Dominican Republic several times, including a 20–day trip in 1994, a subsequent visit to see his ailing father and to “recognize” his extra-marital daughter, and most recently in 2002 to accompany his wife who sought medical treatment from Dominican doctors. Ventura–Reyes testified that he has not returned to Angelina Cotue and that he has never been harmed on his trips to the Dominican Republic. However, he was informed by a relative during his last visit that some men in Angelina Cotue were inquiring about him and that a Peguero family associate was searching for him. As a result, Ventura–Reyes cut his visit short and returned to the United States before his wife completed her medical treatment.

Ventura–Reyes' wife has returned to the Dominican Republic for further surgical treatment, as recently as 2005 or 2006. Ventura–Reyes also has seven children, five of whom were born in the United States and two of whom were born in the Dominican Republic. Only one daughter lives in the Dominican Republic; her exact whereabouts are uncertain, but to Ventura–Reyes' knowledge, she has not been harmed. His American-born children have traveled to the Dominican Republic, including as recently as 2009 or 2010. Ventura–Reyes continues to believe that the Peguero family is a threat to him because “they said they were going to join the police force to kill [him]” and they swore to avenge the death of Julian Peguero Rojas. A.R. 321–22.

B.

Ventura–Reyes' second claim arose in 1997 when Ventura–Reyes' uncle, Radame Almanza Reyes, was arrested for selling 62 grams of heroin to a DEA informant in New York. Ventura–Reyes alleges that Radame Almanza Reyes pled guilty, agreed to cooperate with the government, and consequently received five years of probation instead of a prison sentence.⁴ Ventura–Reyes accompanied another uncle, Anibal Reyes, to post bond for Radame Almanza Reyes. At that time, Ventura–Reyes may have suggested additional family members (specifically, his cousin, Rafael Antonio Reyes) who could assist the DEA in their efforts to identify other drug dealers. This appears to be the extent of Ventura–Reyes' own actions with respect to the DEA.

The DEA enlisted Ventura–Reyes' relatives, Radame Almanza Reyes and possibly Rafael Antonio Reyes (who appeared to have pre-existing connections to the drug world), to stage a drug deal at a location near 163rd Street in Manhattan.⁵ The staged drug deal led to some arrests by the DEA. Modesto Gonzalez Molina, a dealer who allegedly lost money when the arrests were made, sought revenge against Rafael Antonio Reyes and staged a robbery to steal the proceeds from the sale of two kilos of cocaine (unconnected to the DEA-staged deal) in 1999. On December 1, 2002, in the Dominican Republic, the bad blood between Modesto Gonzalez Molina and Rafael Antonio Reyes culminated in the deaths of Modesto Gonzalez Molina and his brother (Juan Vermen Gonzalez Molina) at the hands of Rafael Antonio Reyes. Ventura–Reyes believes that Rafael Antonio Reyes was acting in self-defense, as the Gonzalez Molina brothers had been seeking revenge against him for the New York drug incidents. Rafael Antonio Reyes was charged for the deaths of the Gonzalez Molina brothers in 2002. In 2003, he was convicted and sentenced to twenty years' imprisonment in the Dominican Republic. Ventura–Reyes testified before the IJ that Rafael Antonio Reyes was released after serving only two years because he appealed his case with the help of lawyers and a former girlfriend of Modesto Gonzalez Molina, who testified on his behalf. Subsequently, in 2005, the witness allegedly was killed by the Dominican military, which was believed, “by neighbors and other people” who supposedly saw the incident, to be connected to the Gonzalez Molina family and the Bronx drug arrests. A.R. 274. On June or July 8, 2005, upon Rafael Antonio Reyes' release from prison, he was involved in a car chase and shootout during which a close family friend, Fermin/Vermen Soto, was killed. The car used in the chase was stolen but may have been registered in the name of someone with ties to Dominican...