                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 15-2566
                                      ____________

                        JULIO CESAR GONZALES ZAMORA,
                                        Petitioner

                                             v.

              ATTORNEY GENERAL UNITED STATES OF AMERICA,
                                      Respondent
                    __________________________________

                          On a Petition For Review of an Order
                           of the Board of Immigration Appeals
                               (Agency No. A091-293-465)
                          Immigration Judge: Walter A. Durling
                        __________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   October 21, 2015

         Before: AMBRO, GREENAWAY, JR. and SLOVITER, Circuit Judges

                           (Opinion filed: December 11, 2015)
                                     ____________

                                        OPINION*
                                      ____________

PER CURIAM

       Julio Cesar Gonzalez Zamora (“Gonzalez Zamora”) petitions for review of the



*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Board of Immigration Appeals’ final order of removal.1 For the reasons that follow, we

will deny the petition for review.

         Gonzalez Zamora, a native and citizen of Mexico, entered the United States

without inspection or parole in 1981, and adjusted his status in 1991. He was convicted

in 2011 in the United States District Court for the Southern District of Texas of

conspiracy to possess with intent to distribute more than 5 kilograms of cocaine, in

violation of 21 U.S.C. §§ 846, 841(a)(1) & 841(b)(1)(A), and sentenced to a term of

imprisonment of 70 months. On or about October 7, 2013, Gonzalez Zamora was served

with a Notice to Appear for removal proceedings. Based on his admissions before an

Immigration Judge, he was found to be removable under Immigration & Nationality Act

(“INA”) § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), as an alien who has been

convicted of an aggravated felony as defined in INA § 101(a)(43)(B), 8 U.S.C.

1101(a)(43)(B) (illicit trafficking in a controlled substance, including a drug trafficking

crime), and INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i), as an alien who has been

convicted of a controlled substance offense.

         After being advised that he was ineligible for most forms of relief from removal,

Gonzalez Zamora applied for deferral of removal under the Convention Against Torture,

claiming a fear of being harmed in Mexico by his co-conspirators. At his merits hearing

in April, 2015, he testified that his sister-in-law, Magda, offered him $2,000 to participate

in the drug trafficking scheme that ultimately led to his arrest and conviction. He claimed

that the leader of the scheme and other co-conspirators remained at-large in Mexico, and

1
    We will use the spelling of the surname provided in the Petitioner’s brief.
                                               2
that they might seek revenge against him for losses sustained by the group on account of

his arrest, or try to recruit him for further illicit activity if he returns. He also claimed

that Magda’s nephew was killed in Mexico in 2011 or 2012; that his childhood friend

disappeared in Mexico; and that an unidentified acquaintance was forced to work for a

drug cartel after the group mistreated members of his family. He claimed further that his

brother was severely beaten by one of these cartels, that they “they cut the head” of

“another person that [he knew],” and that his sister-in-law “is on the list.”

       The IJ denied the CAT application for insufficient evidence and ordered that

Gonzalez Zamora be removed to Mexico. The IJ noted that Gonzalez Zamora admitted

that he has never been threatened with harm and that he has no fear that Mexican

government officials will torture him. The IJ acknowledged that Gonzalez Zamora may

be legitimately concerned about the prospect of being recruited by criminal elements in

Mexico, but that such a fear is insufficient to prove that it is more likely than not that he

would be subjected to torture by or with the consent or acquiescence of the Mexican

government.

       Gonzalez Zamora appealed to the Board of Immigration Appeals and submitted

numerous letters from family members, including his children, expressing their need for

him and supporting his efforts to remain in the United States. On June 4, 2015, the Board

affirmed the IJ and dismissed the appeal. The Board noted as a threshold matter that,

because his offense involved more than 5 kilograms of cocaine, Gonzalez Zamora was

not eligible for a waiver of inadmissibility under INA § 212(h), 8 U.S.C.§1182(h), among

other things not relevant here. The Board then concluded that there was no record

                                                3
evidence which would support a conclusion that there is a clear probability that Gonzalez

Zamora will be tortured upon his return to Mexico.

         Gonzalez Zamora has timely petitioned for review, 8 U.S.C. § 1252(b)(1). The

INA precludes review of final orders against aliens who, like Gonzalez Zamora, are

removable for having been convicted of an aggravated felony or an offense related to a

controlled substance. 8 U.S.C. § 1252(a)(2)(C).2 We, nevertheless, retain jurisdiction

over colorable constitutional claims and questions of law. Id. at § 1252(a)(2)(D). A CAT

applicant must show that “it is more likely than not that [he] would be tortured in the

proposed country of removal.” 8 C.F.R. § 1208.16(c)(3). Kaplun v. Att’y Gen. of U.S.,

602 F.3d 260 (3d Cir. 2010), holds that whether future torture is likely turned on two

questions: “(1) what is likely to happen to the petitioner if removed; and (2) does what is

likely to happen amount to the legal definition of torture?” Id. at 271. The first question

is factual; the second is legal. See id. See also Pieschacon-Villegas v. Att’y Gen. of

U.S., 671 F.3d 303, 310 (3d Cir. 2011) (same). The agency denied Gonzalez Zamora’s

CAT application on the basis that what is likely to happen to him in Mexico does not

amount to the legal definition of torture. This is a reviewable determination. 8 U.S.C.

§ 1252(a)(2)(D). In addition, Gonzalez Zamora argues in his brief that he is statutorily

eligible for a waiver of inadmissibility under INA § 212(h), contrary to the agency’s

determination that he is not. Petitioner’s Brief, at 3.

         We will deny the petition for review. Where, as here, the Board agrees with the

decision and analysis of the IJ while adding its own reasoning, we review both decisions.

2
    Gonzalez Zamora does not dispute that he is removable as charged.
                                              4
See Sandie v. Att’y Gen. of U.S., 562 F.3d 246, 250 (3d Cir. 2009). We conclude that

the agency considered all of Gonzalez Zamora’s evidence, applied the correct standard of

review, gave him a full and fair opportunity to present evidence, and properly determined

that the record evidence does not meet the legal definition of torture. “Torture is defined

as any act by which severe pain or suffering, whether physical or mental, is intentionally

inflicted on a person for such purposes as obtaining ... information or a confession,

punishing [him] ... for an act [he] has committed or is suspected of having committed,

intimidating or coercing, or for any reason based on discrimination of any kind.”

8 C.F.R. § 1208.18(a)(1). The torture must be “inflicted by or at the instigation of or with

the consent or acquiescence of” an official person. Id. The prospect of being recruited

by criminal elements in Mexico does not meet the legal definition of torture. Moreover,

Gonzalez Zamora failed to show a link between the Mexican government and drug cartel

recruitment and violence as it pertains to his application. He provided corroborating

country-conditions evidence—a 2013 State Department Human Rights Report—showing

that cartel violence and official corruption remain serious problems in Mexico, but this

evidence also indicates that the Mexican government is making efforts to combat both.

In any event, there is an insufficient link between this country-conditions evidence and

Gonzalez Zamora’s particular allegations. Accordingly, the agency properly denied relief

under the CAT.

       Gonzalez Zamora argues in his brief that the aggravated felony bar to waivers

under INA § 212(h) does not apply to him because he was not admitted as a lawful

permanent resident; rather, he adjusted his status many years after he entered the United

                                             5
States. Petitioner’s Brief, at 3 (citing 8 U.S.C. § 1101(a)(13)(A) (“The terms ‘admission’

and ‘admitted’ mean, with respect to an alien, the lawful entry of the alien into the United

States after inspection and authorization by an immigration officer.”)). We have

previously held that this is a valid distinction. See Hanif v. Att’y Gen. of U.S., 694 F.3d

479, 484 (3d Cir. 2012) (section 212(h) waiver limitation applies only where there is “a

prior admission to the United States [and] that … prior admission has been made while

the alien was in the status of a lawful permanent resident.”). See also Martinez v. Att’y

Gen. of U.S., 693 F.3d 408, 415-16 (3d Cir. 2012). More is required, however, to be

eligible for a § 212(h) waiver on the basis of an “extreme hardship,” 8 U.S.C.

§ 1182(h)(1)(B), to a qualifying relative. Under 8 U.S.C. § 1182, aliens may be

inadmissible on criminal or related grounds, id. at § 1182(a)(2), but the statute provides

the Attorney General the discretion to waive inadmissibility insofar as the criminal or

related grounds “relate to a single offense of simple possession of 30 grams or less of

marijuana,” id. at § 1182(h). Gonzalez Zamora’s offense is a drug conspiracy involving

possession with intent to distribute more than five kilograms of cocaine. It thus does not

relate “to a single offense of simple possession of 30 grams or less of marijuana” and so

he is still ineligible for a § 212(h) waiver.

       For the foregoing reasons, we will deny the petition for review.




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