RIVAS APONTE v. SESSIONS III (2018)

SUMMARY ORDER

Petitioner Santiago De Jesus Rivas-Aponte, a native and citizen of the Dominican Republic, seeks review of a June 28, 2016 decision of the BIA affirming an April 30, 2015, decision of an IJ denying Rivas-Aponte's applications for asylum, withholding of removal, and CAT relief and ordering his removal. In re Santiago De Jesus Rivas Aponte, No. A XXX XX0 410 (B.I.A. June 28, 2016), aff'g No. A XXX XX0 410 (Immig. Ct. Hartford Apr. 30, 2015). The Government moves to dismiss the petition. We assume the parties’ familiarity with the underlying facts and procedural history in this case.

We have reviewed the IJ's decision as modified and supplemented by the BIA. See Wala v. Mukasey, 511 F.3d 102, 105 (2d Cir. 2007); Xue Hong Yang v. U.S. Dep't of Justice, 426 F.3d 520, 522 (2d Cir. 2005). Because Rivas-Aponte was ordered removed for an aggravated felony, our review is limited to colorable constitutional claims and questions of law. See 8 U.S.C. § 1252(a)(2)(C), (D); Ortiz-Franco v. Holder, 782 F.3d 81, 91 (2d Cir. 2015). Rivas-Aponte argues that the IJ was required, under the Fifth Amendment's Due Process Clause, to assess whether removal was a disproportionate penalty for his criminal conviction. But this argument is foreclosed by Marin-Marin v. Sessions, 852 F.3d 192, 194–95 (2d Cir. 2017) (per curiam), which held that removal is not subject to due process proportionality review. See id. at 194 (“[I]n general, when removal is predicated on a criminal act, ‘the alien is not being punished for that act (criminal charges may be available for that separate purpose) but is merely being held to the terms under which he was admitted.’ ” (quoting Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 491, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999) ) ). Because the sole argument that Rivas-Aponte raises here is foreclosed by our precedent, we deny the petition for review.

Nonetheless, we decline to dismiss this case for lack of jurisdiction and so also DENY the government's motion to dismiss. Although “we lack jurisdiction to review any legal argument that is so insubstantial and frivolous as to be inadequate to invoke federal-question jurisdiction,” Barco-Sandoval v. Gonzales, 516 F.3d 35, 40 (2d Cir. 2008), Rivas-Aponte's argument is not so insubstantial as to meet this standard. See Avendano-Espejo v. Dep't of Homeland Sec., 448 F.3d 503, 505–06 (2d Cir. 2006) (explaining that we lack jurisdiction when petitioners “dress up” challenges to “decision[s] firmly committed by statute to the discretion of the Attorney General ․ with the language of due process” (internal citations omitted); see also Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 89, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (“Dismissal for lack of subject-matter jurisdiction because of the inadequacy of the federal claim is proper only when the claim is ‘so insubstantial, implausible, foreclosed by prior decisions of [the Supreme] Court, or otherwise completely devoid of merit as not to involve a federal controversy.” (quoting Oneida Indian Nation of N.Y. v. Cty. of Oneida, 414 U.S. 661, 666, 94 S.Ct. 772, 39 L.Ed.2d 73 (1974) (emphasis added) ).

For the foregoing reasons, the petition for review is DENIED, and the motion to dismiss the petition is DENIED.