                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 10-4726
                                     ___________

                            KAMORUDEEN SOWEMIMO,
                                            Petitioner

                                           v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                              Respondent
                    ____________________________________

                       On Petition for Review of an Order of the
                            Board of Immigration Appeals
                             (Agency No. A075-821-925)
                     Immigration Judge: Honorable Andrew Arthur
                      ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   June 23, 2011
           Before: RENDELL, CHAGARES and ALDISERT, Circuit Judges

                              (Opinion filed: July 5, 2011)
                                     ___________

                                      OPINION
                                     ___________

PER CURIAM

      Kamorudeen Sowemimo petitions for review of the Board of Immigration

Appeals’s (“BIA”) decision dismissing his appeal from an Immigration Judge’s (“IJ”)

order denying Sowemimo’s application for relief under the Convention Against Torture

(“CAT”) and directing his removal to Nigeria. For the reasons that follow, we will
dismiss the petition for review.

                                             I

       Sowemimo, a citizen of Nigeria, entered the United States without inspection in

1993. However, he obtained conditional permanent resident status in 1998 and, in March

2001, became a lawful permanent resident. In September 2001, Sowemimo was

convicted in federal court of participating in a conspiracy to distribute heroin, and he was

sentenced to 168 months’ imprisonment.

       In 2009, Sowemimo was served with a notice to appear, which charged him as

removable for, among other things, having committed an aggravated felony. Sowemimo

appeared before the IJ and conceded all of the charges against him, but sought relief

under the CAT. Sowemimo explained that, in 2003, a fellow inmate attempted to

sexually assault him. Although Sowemimo was initially overpowered, he was able to

fend off his attacker with other inmates’ help. Sowemimo was then transferred to a

different facility and given counseling. Sowemimo argued that homosexual contact is

illegal in Nigeria and, because his attack had become public knowledge in Nigeria after

he told his relatives, he would be subject to torture. Sowemimo was particularly

concerned that authorities would torture him to coerce a false confession that he willingly

engaged in homosexual contact, such a confession being necessary for a conviction under

Nigerian law, and that he would be imprisoned or executed.

       In support of his CAT application, Sowemimo submitted notes from his

psychologist indicating that he fears returning to Nigeria because he would be perceived


                                             2
as homosexual, as well as news articles and country reports indicating that Nigeria

generally treats homosexuals poorly and criminalizes homosexual relationships. The IJ

denied relief, reasoning that Sowemimo failed to demonstrate a likelihood that he would

be tortured by or at the instigation of, or with the consent or acquiescence of, a public

official. In the IJ’s view, Sowemimo did not present sufficient evidence that Nigeria

punishes individuals for engaging in homosexual relationships abroad or for being the

victim of a sexual assault perpetrated by a person of the same sex.

       On appeal, the BIA conducted de novo review and, agreeing with the IJ’s

determination, dismissed Sowemimo’s appeal. Sowemimo filed a petition for review, but

we granted the Government’s unopposed motion to remand in light of this Court’s

decision in Kaplun v. Att’y Gen., 602 F.3d 260 (3d Cir. 2010). See C.A. No. 10-1565

(order entered August 10, 2010). On remand, the BIA applied the Kaplun framework for

reviewing the IJ’s decision and reached the same conclusion, i.e., that the IJ’s decision

was correct. Sowemimo then filed this petition for review.

                                              II

       As the Government argues in its brief, we generally lack jurisdiction to review a

final order of removal against a criminal alien, like Sowemimo, who is removable for

having committed an aggravated felony. See 8 U.S.C. § 1252(a)(2)(C). Even when this

jurisdiction-stripping provision applies, we may review “constitutional claims or

questions of law” raised in a petition for review. See § 1252(a)(2)(D). However, “[o]ur

jurisdiction in that respect is ‘narrowly circumscribed’ in that it is limited to ‘colorable


                                               3
claims or questions of law.’” Pareja v. Att’y Gen., 615 F.3d 180, 186 (3d Cir. 2010)

(quoting Cospito v. Att’y Gen., 539 F.3d 166, 170 (3d Cir. 2008) (per curiam)) (quotation

marks and citation omitted in original). A claim is not colorable if “it is immaterial and

made solely for the purpose of obtaining jurisdiction or is wholly insubstantial and

frivolous.” Id. (internal quotation marks and citation omitted). We must therefore

determine at the outset whether Sowemimo’s petition raises a colorable legal or

constitutional question, as distinguished from factual questions over which we lack

jurisdiction. See Alaka v. Att’y Gen., 456 F.3d 88, 102 (3d Cir. 2006).

       As we explained in Kaplun, an IJ’s evaluation of a CAT claim includes two

distinct 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?” 1 602 F.3d at 271. The

first of these two questions is a factual matter. See id. Sowemimo’s primary argument

on appeal is that the IJ and BIA erred in concluding that he did not show a likelihood that

he will be harmed if he returns to Nigeria. This plainly amounts to an attack on the

Agency’s factual determination, and we lack jurisdiction to entertain Sowemimo’s

argument.

       Construing Sowemimo’s pro se petition liberally, we discern only two possible

legal arguments over which we might have jurisdiction. First, Sowemimo characterizes

the sexual assault he endured as torture and suggests that the attack therefore qualifies

   1
     To prevail on a claim for relief under the CAT, an applicant “bears the burden of
   establishing ‘that it is more likely than not that he . . . would be tortured if removed to
   the proposed country of removal.’” Sevoian v. Ashcroft, 290 F.3d 166, 175 (3d Cir.
   2002) (quoting 8 C.F.R. § 208.16(c)(2)).

                                              4
him for CAT relief. Although we express our agreement with the IJ that Sowemimo was

the victim of an unconscionable sexual attack, the violence he suffered while incarcerated

in the United States does not, under the governing law, provide a basis for deferring his

removal to Nigeria. 2 See generally 8 C.F.R § 1208.16(c)(3).

       Next, Sowemimo argues that the BIA impermissibly ignored evidence. Although

Sowemimo correctly notes that the BIA must consider evidence that is favorable to him,

see Espinosa-Cortez v. Att’y Gen., 607 F.3d 101, 107 (3d Cir. 2010), the BIA’s review is

limited to the record before the IJ. See 8 C.F.R. § 1003.1(d)(3)(iv) (“the Board will not

engage in factfinding in the course of deciding appeals”). The evidence Sowemimo

claims the BIA should have examined consists almost entirely of articles and reports

presented for the first time in his petition for review. Neither the BIA nor this Court

could review these new documents, see Berishaj v. Ashcroft, 378 F.3d 314, 329-30 (3d

Cir. 2004), and the BIA’s opinion reflects that it considered the record before it, which is

all the law requires. See Zheng v. Att’y Gen., 549 F.3d 260, 268 (3d Cir. 2008) (the BIA

need not “‘expressly parse . . . each individual argument or piece of evidence offered by

the petitioner . . .’” (quoting Wang v. BIA, 437 F.3d 270 (2d Cir. 2006))). In sum,

Sowemimo has not raised a colorable legal or constitutional claim in his petition for

review.

       Accordingly, we will dismiss the petition for review.

   2
     In any event, it does not appear that Sowemimo presented this argument to both the
   IJ and BIA. Thus, his argument is unexhausted, and we lack jurisdiction to review it.
   See Lin v. Att’y Gen., 543 F.3d 114, 120 & n.6 (3d Cir. 2008).


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