                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-29-2008

Falou Ndiaye v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3483




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                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                      No. 08-3483
                                     ____________

                                   FALOU NDIAYE,
                                                       Petitioner
                                           vs.

                ATTORNEY GENERAL OF THE UNITED STATES,
                                         Respondent

                     ____________________________________

                       On Petition for Review of an Order of the
                           Board of Immigration Appeals
                              (Agency No. A93 012 251)
                     Immigration Judge: Honorable Jeffrey Romig
                                    ____________

                  Submitted Pursuant to Third Circuit LAR 34.1(a)
                                December 29, 2008
        Before: SCIRICA, Chief Judge, CHAGARES and WEIS, Circuit Judges

                             (Opinion filed December 29, 2008)

                                     ___________

                                      OPINION
                                     ___________

PER CURIAM.

             Falou Ndiaye, proceeding pro se, petitions for review of a final order of

removal of the Board of Immigration Appeals (“BIA”). For the reasons that follow, we

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will dismiss the petition for review for lack of jurisdiction.

              Ndiaye is a native and citizen of Senegal. He came to the United States in

1988 as a visitor with permission to stay for 30 days. In 2005, Ndiaye was convicted in

the United States District Court for the Southern District of New York of conspiracy to

distribute heroin and possession with the intent to distribute heroin. He received a 70-

month prison sentence. In 2007, a notice to appear was issued charging Ndiaye with

removability because he had been convicted of an aggravated felony and a controlled

substance violation. Ndiaye admitted the allegations in the notice to appear, and the

Immigration Judge (“IJ”) found him removable as charged. Ndiaye applied for asylum,

withholding of removal, and relief under the Convention Against Torture (“CAT”).

Ndiaye claimed a fear of persecution in Senegal on account of his homosexuality.

              Ndiaye testified that he was married in Senegal in 1973 and had seven

children. He stated that he knew that he was gay at the age of 14, but that he did not tell

anyone. In 1988, Ndiaye felt that he could not hide his homosexuality any longer, and he

announced to his family that he was gay. Ndiaye stated that his family would not speak to

him, and he left his home. Ndiaye left Senegal two months later. Ndiaye further testified

that he had no homosexual relationships in Senegal, and that he has had two homosexual

relationships in the United States. Ndiaye fears that he will be harmed if he returns to

Senegal.




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               The IJ found Ndiaye ineligible for asylum because he was convicted of an

aggravated felony, and ineligible for withholding of removal because his drug trafficking

crime is a “particularly serious crime” under the immigration statute. The IJ further found

no clear probability of torture if Ndiaye is removed to Senegal. The IJ explained that the

2006 Country Report on Human Rights Practices for Senegal reflected discrimination

against homosexuals and intolerance in the culture, but no likelihood of torture. Although

Ndiaye believed homosexuality was a crime in Senegal, the IJ noted that the Country

Report stated to the contrary. The IJ recognized that Ndiaye’s case had sympathetic

factors, including that he was 63 years old, that he had been here for 20 years, and that he

would return to a country that did not tolerate homosexuality, but the IJ concluded that

Ndiaye was not eligible for any form of relief under the Immigration and Nationality Act

or for protection under the CAT.

               The BIA affirmed, without opinion, the result of the IJ’s decision, making

the IJ’s decision the final agency determination under the regulations. See 8 C.F.R.

§ 1003.1(e)(4). This petition for review followed. The Government has filed a motion to

dismiss the petition for review for lack of jurisdiction, which has been referred to us for

disposition.

               The Government argues that we lack jurisdiction to review the BIA’s final

order of removal because Ndiaye was convicted of an aggravated felony, and he has not

raised a legal or constitutional challenge to the BIA’s decision. We agree. With the



                                              3
exception of constitutional claims or questions of law, we lack jurisdiction to review a

final order of removal against an alien who is removable by reason of having committed

an aggravated felony. 8 U.S.C. § 1252(a)(2)(C),(D); see also Papageorgiou v. Gonzales,

413 F.3d 356, 357-58 (3d Cir. 2005). Ndiaye has not raised in his brief a constitutional

claim or a question of law. The Government correctly states that each issue raised by

Ndiaye relates to issues of fact and questions regarding the consideration, interpretation,

and weight of the record evidence.

              Accordingly, we will grant the Government’s motion and will dismiss the

petition for review for lack of jurisdiction.




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