Opinion
No. 07-1394-ag NAC.
January 3, 2008.
UPON DUE CONSIDERATION of this petition for review of a Board of Immigration Appeals ("BIA") decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the petition for review is DENIED.
FOR PETITIONER: David M. Lubitz; Lauren J.K. Cook, Washington, D.C. FOR RESPONDENT: Peter D. Keisler, Assistant Attorney General, Civil Division; Aviva L. Poczter, Senior Litigation Counsel; Vanessa O. Lefort, Trial Attorney, Office of Immigration Litigation, U.S. Department of Justice, Washington, D.C.
PRESENT: HON. ROGER J. MINER, HON. ROBERT D. SACK, HON. DEBRA ANN LIVINGSTON, Circuit Judges.
Petitioner Javier Cruz, a native and citizen of Cuba, seeks review of a January 16, 2007 order of the BIA reversing the March 1, 2006 decision of Immigration Judge ("IJ") Phillip L. Morace granting Cruz's request for deferral of removal under the Convention Against Torture ("CAT"). In re Javier Cruz a.k.a. Javier Velasquez Cruz a.k.a. Javier Creuz a.k.a. Javier Cruz Velasquez, No. A 25 412 820 (B.I.A. Jan. 16, 2007),rev'g No. A 25 412 820 (Immig. Ct. Napanoch Mar. 1, 2006). We assume the parties' familiarity with the underlying facts and procedural history in this case.
When the BIA does not adopt the decision of the IJ to any extent, this Court reviews only the decision of the BIA.See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). This Court reviews the agency's factual findings under the substantial evidence standard, treating them as "conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B);see, e.g., Zhou Yun Zhang v. INS, 386 F.3d 66, 73 n. 7 (2d Cir. 2004), overruled in part on other grounds by Shi Liang Lin v. U.S. Dep't of Justice, 494 F.3d 296, 305 (2d Cir. 2007). However, we will vacate and remand for new findings if the agency's reasoning or its fact-finding process was sufficiently flawed. Cf. Cao He Lin v. U.S. Dep't of Justice, 428 F.3d 391, 406 (2d Cir. 2005).
Title 8, Section 1252(a)(2) of the United States Code provides that no court shall have jurisdiction to review any final order of removal entered against an alien who is removable by reason of having committed a criminal offense covered, inter alia, in section 212(a)(2) of the Immigration and Nationality Act. 8 U.S.C. § 1252(a)(2)(C). Notwithstanding that provision, however, this Court retains jurisdiction to review constitutional claims and "questions of law." 8 U.S.C. § 1252(a)(2)(D). "Questions of law" encompass the same issues traditionally reviewed by courts in habeas petitions challenging Executive detentions. See Xiao Ji Chen v. U.S. Dep't of Justice, 471 F.3d 315, 326-27 (2d Cir. 2006).
Cruz argues that the BIA committed reversible error in failing to consider the 2004 U.S. Department of State Country Report on Human Rights Practices in Cuba ("Country Report") in the record. This argument, however, does not raise a question of law. We have emphasized that where the agency has given reasoned consideration to the petition and made adequate findings, it is not required to address specifically each claim the petitioner made or each piece of evidence the petitioner presented.See id. at 336-37 n. 17. The agency is presumed to have considered all of the evidence before it unless the record indicates otherwise. Id. In the instant case, Cruz's argument essentially challenges the BIA's weighing of the evidence where there is no indication that the BIA failed to review the Country Report. See Khan v. Gonzales, 495 F.3d 31, 35 (2d Cir. 2007) (explaining that a petitioner cannot overcome the lack of a reviewable issue by "using the rhetoric of a `constitutional claim' or `question of law' to disguise what is essentially a quarrel about fact-finding or the exercise of discretion" (citing Xiao Ji Chen, 471 F.3d at 329)). Thus, we lack jurisdiction to review Cruz's first argument.
Cruz also asserts that the BIA committed reversible error by requiring him to prove that, if detained, he would be tortured because Cuban authorities "intentionally and deliberately detain criminal deportees in order to inflict torture." To the extent Cruz claims that the BIA applied the wrong legal standard in his case, he has raised a colorable question of law. See id. at 35-36 (reaffirming that this Court has jurisdiction to review a petitioner's claim that the agency applied an erroneous legal standard); Barco-Sandoval v. Gonzales, 496 F.3d 132, 137 (2d Cir. 2007) (noting that a discretionary decision based on a legally erroneous standard may raise a question of law). The argument nevertheless fails.
Contrary to Cruz's argument, it does not appear that the BIA's decision was based solely on the BIA's finding that Cruz did not show the requisite intent. Rather, the BIA found that Cruz had not shown that he was likely to be detained at all. The BIA further found that even if Cruz were detained, there was no indication that Cuban authorities intentionally detain criminal deportees "in order to torture them." As to Cruz's challenge to the former, as we have stated above, we are without jurisdiction to review the BIA's weighing of the evidence. Cruz's challenge to the latter finding, though it presents a question of law, is without merit.
In its decision, the BIA conveyed its understanding of the proper legal standard for CAT claims when it cited Matter of J-E-, 23 I. N. Dec. 291 (B.I.A. 2002). There the BIA held that because there was "no evidence that Haitian authorities [were] detaining criminal deportees with the specific intent to inflict severe physical or mental pain," "Haiti's detention practice alone does not constitute torture within the meaning of the regulations." This Court recently cited Matter of J-E- in holding that the harsh prison conditions to which an alien alleged he would be subjected in Haiti did not constitute torture absent a showing that those conditions would be inflicted on him with the "specific intent" to cause severe physical or mental pain or suffering.See Pierre v. Gonzales, 502 F.3d 109, 118-19, 121(2d Cir. 2007). Accordingly, because the BIA did not apply an improper legal standard, Cruz's argument fails.
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(d)(1).