YOUNG v. SESSIONS III (2018)

SUMMARY ORDER

Petitioner Marlon Everton Young, a native and citizen of Jamaica, seeks review of a December 8, 2016, decision of the BIA affirming a July 25, 2016, decision of an Immigration Judge (“IJ”) denying Young's application for withholding of removal and relief under the Convention Against Torture (“CAT”). In re Marlon Everton Young, No. A XXX XX9 326 (B.I.A. Dec. 8, 2016), aff'g No. A XXX XX9 326 (Immig. Ct. N.Y. City July 25, 2016). We assume the parties’ familiarity with the underlying facts and procedural history in this case.

We have reviewed the IJ's decision as supplemented by the BIA. Wala v. Mukasey, 511 F.3d 102, 105 (2d Cir. 2007). Young's aggravated felony ground of removal limits our review to constitutional claims and questions of law. 8 U.S.C. § 1252(a)(2)(C), (D); Ortiz-Franco v. Holder, 782 F.3d 81, 90 (2d Cir. 2015). Moreover, because Young was convicted of an aggravated felony and sentenced to 5 years’ imprisonment for that crime, the conviction made him ineligible for withholding of removal as a matter of law. 8 U.S.C. § 1231(b)(3)(B) (providing that particularly serious crime bars withholding of removal and defining particularly serious crime as “an aggravated felony (or felonies) for which the alien has been sentenced to an aggregate term of imprisonment of at least 5 years”). To the extent Young argues that he should be allowed to provide evidence of his innocence, he cannot do so in removal proceedings or in a petition for review in this Court. See Lanferman v. BIA, 576 F.3d 84, 88 (2d Cir. 2009) (“Collateral attacks are not available in a ․ petition challenging the BIA's removal decision.” (quoting Abimbola v. Ashcroft, 378 F.3d 173, 181 (2d Cir. 2004) ) ). Thus, the only issue properly before us is the denial of CAT relief.

To qualify for CAT relief, an applicant must show that he is “more likely than not” to be tortured. 8 C.F.R. § 1208.16(c)(2). “Torture is defined as ․ severe pain or suffering ․ inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” Id. § 1208.18(a)(1). The agency must consider “all evidence relevant to the possibility of future torture,” including past torture, the possibility of internal relocation, “[e]vidence of gross, flagrant or mass violations of human rights,” and “[o]ther relevant information regarding conditions in the country of removal.” Id. § 1208.16(c)(3)(i)-(iv).

We have jurisdiction to review Young's argument that the agency applied an improperly high burden of proof. Xiao Ji Chen v. U.S. Dep't of Justice, 471 F.3d 315, 329 (2d Cir. 2006) (explaining that we retain jurisdiction if agency applies “legally erroneous standard”). But the argument lacks merit. The IJ appropriately considered whether Young or “someone in his particular alleged circumstances” would more likely than not be tortured in Jamaica. 8 C.F.R. § 1208.16(c)(2) (“The burden of proof is on the applicant ․ to establish that it is more likely than not that he or she would be tortured if removed to the proposed country of removal.”); Mu-Xing Wang v. Ashcroft, 320 F.3d 130, 144 (2d Cir. 2003) (requiring petitioner to show “that someone in his particular alleged circumstances is more likely than not to be tortured if imprisoned in China”). Nothing in the IJ's decision suggests that he placed too high a burden on Young to prove he would likely be targeted.

As to Young's argument that the agency erred in finding that he did not satisfy his burden of proof, the agency considered all the relevant evidence, including the testimony of an expert witness and background evidence regarding country conditions, the fact of Young's conviction, and the fact that Young was not harmed during his previous visit to Jamaica. 8 C.F.R. § 1208.16(c)(3) (providing that the agency shall consider “all evidence relevant to the possibility of future torture” including whether the applicant has been tortured in the past). Accordingly, Young's challenge is to the agency's weighing of his evidence, which is the type of factual dispute that we lack jurisdiction to review. See Ortiz-Franco, 782 F.3d at 91 (finding no question of law where petitioner disputes “correctness of [the] IJ's fact-finding” (alteration in original) ); Hui Lin Huang v. Holder, 677 F.3d 130, 134 (2d Cir. 2012) (stating that likelihood that future event will occur is factual question).

For the foregoing reasons, the petition for review is DENIED.