                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 12-1957
                                      ___________

                                JOSE LUIS VASQUEZ,

                                                       Petitioner

                                            v.

                 ATTORNEY GENERAL OF THE UNITED STATES
                    ____________________________________

                      On Petition for Review of an Order of the
                            Board of Immigration Appeals
                             (Agency No. A042-889-147)
                   Immigration Judge: Honorable Walter A. Durling
                     ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  January 23, 2013

      Before: FUENTES, HARDIMAN AND VAN ANTWERPEN, Circuit Judges

                            (Opinion filed February 4, 2013)
                                      _________

                                       OPINION
                                       _________

PER CURIAM

      Petitioner Jose Luis Vasquez, a citizen of the Dominican Republic who is present

in the United States as a lawful permanent resident, seeks review of a Board of

Immigration Appeals (BIA) order denying relief from removal and declining to reopen
the evidentiary record. We will dismiss in part and deny in part his petition for review.

       After pleading guilty in 2009 to one count of trafficking a Mercedes Benz with an

altered Vehicle Identification Number (in violation of 18 U.S.C. § 2321, see S.D.N.Y.

Crim. No. 1:08-cr-00988), Vasquez was placed into deportation proceedings. One basis

for his removal was the aforementioned conviction, which rendered him an aggravated

felon under the Immigration and Nationality Act. See Administrative Record (A.R.) 707

(citing 8 U.S.C. §§ 1101(a)(43)(R) and 1227(a)(2)(A)(iii)). Vasquez sought withholding

of removal relief (―withholding‖) and protection under the United Nations Convention

Against Torture (―CAT‖). He claimed to fear retribution from the co-defendants in his

federal case, who had close ties with the ―Trinitarios‖ gang and—based on their belief

that he cooperated with the United States Government—threatened him with harm should

he ever return to the Dominican Republic.1

       Vasquez‘s applications for relief were unsuccessful. While concluding that

Vasquez and his girlfriend had testified credibly, an Immigration Judge (IJ) nevertheless

determined that 1) the mistreatment feared by Vasquez was not on account of his

membership in a ―social group‖ as defined in 8 U.S.C. § 1231(b)(3)(A); and 2) while the

Dominican government was ―rife with corruption problems . . . [the record] is wholly

lacking . . . i[n] any corroboration that the government of the Dominican Republic is

somehow influenced or infiltrated by the Trinitarios gang‖ and would therefore be

―unable to unwilling to prevent‖ harm to Vasquez. A.R. 139–42. The IJ also found ―no




                                             2
evidence that the government would likely torture [Vasquez] upon his return‖ to the

country, or would otherwise acquiesce or be willfully blind to torture by others. A.R.

143–45. Vasquez sought review from the BIA, and also submitted a motion to

remand/reopen the record for ―consideration of new, previously unavailable evidence.‖

A.R. 23. The BIA affirmed, and declined to reopen the record because the new

documents were ―cumulative of evidence previously submitted‖ or otherwise had ―little

evidentiary value.‖ A.R. 8–10. Vasquez filed a timely petition for review with this

Court.

         Because Vasquez was charged with removability under 8 U.S.C.

§ 1227(a)(2)(A)(iii), the jurisdiction-stripping provisions of 8 U.S.C. § 1252(a)(2)(C)

limit our review to ―constitutional claims or questions of law.‖ 8 U.S.C. § 1252(a)(2)(D);

Roye v. Att‘y Gen., 693 F.3d 333, 339 (3d Cir. 2012). The former must be ―colorable

violations of the United States Constitution,‖ while the latter must present ―purely legal

inquiries such as those involved in statutory interpretation‖; both are reviewed de novo,

subject to applicable principles of deference. Roye, 693 F.3d at 339 (citations, quotations

omitted). ―[F]actual or discretionary determinations‖ are ―outside of our scope of

review.‖ Id. To the extent that we do have jurisdiction, because the BIA‘s decision

adopted and expanded upon the IJ‘s decision, we may review both. Chen v. Ashcroft,

376 F.3d 215, 222 (3d Cir. 2004).

         Vasquez‘s arguments are hobbled by our circumscribed jurisdiction. He contends


1
  Because we write primarily for the parties, and due to the circumscribed nature of our
review (see infra), we will forgo an extended summary of the facts of the case and
                                             3
at length that the agency erred by determining that he did not belong to a cognizable

social group: one consisting of perceived informants who have testified against the

interests of Dominican gang members and their associates. ―Whether a[] [petitioner‘s]

proffered ‗particular social group‘ is cognizable . . . is a question of law,‖ and would

ordinarily be reviewable. Gomez-Zuluaga v. Att‘y Gen., 527 F.3d 330, 339 (3d Cir.

2008). But the agency also found 1) that the Dominican government has no interest in

Vasquez beyond his status as a deportee, and 2) that Vasquez had not established that the

government would be unable or unwilling to control his alleged persecutors, thus failing

to meet the burden of proof for withholding relief. See A.R. 3–4, 141–42. These are

issues of fact, not law. See Fiadjoe v. Att‘y Gen., 411 F.3d 135, 153 (3d Cir. 2005); see

also Ghebrehiwot v. Att‘y Gen., 467 F.3d 344, 351 (3d Cir. 2006) (explaining

withholding standard). Even if the agency‘s social-group analysis were erroneous, its

secondary, factual holding would defeat Vasquez‘s applications for relief. Thus, while

we can reach the legal issue, we must deny the petition as to this claim because we are

bound by the agency‘s factual determination. The CAT claim, which was denied by the

agency on substantially similar grounds, suffers from the same deficiencies (e.g., the

petitioner argues that ―the available evidence is clear that the Dominican government is

aware of the torture occurring in the country against individuals similarly situated to

[him]‖—a clear request to review the factual record, which we cannot do) and will also




Vasquez‘s alternative bases for relief.
                                              4
be denied.2

       Vasquez also argues that the BIA erred in denying his motion to remand and

reopen proceedings. ―The BIA treats a motion to remand for the purpose of submitting

additional evidence in the same manner as motions to reopen the record.‖ Huang v. Att‘y

Gen., 620 F.3d 372, 389 (3d Cir. 2010) (citing 8 C.F.R. § 1003.2(c)(4); In re Coelho, 20

I. & N. Dec. 464, 471 (B.I.A. 1992)). When, as here, the BIA declines to open on the

grounds that the new proffer is cumulative or otherwise would not nudge the petitioner

from failure to success, we ordinarily review for abuse of discretion. Id. at 389–90.

However, as was the case above, we are limited in present circumstances to questions of

law and constitutional claims. Cf. Hanan v. Mukasey, 519 F.3d 760, 763 (8th Cir. 2008).

―Garden-variety allegations of factual error such as those presented here‖ cannot suffice




2
  In his brief, Vasquez attacks the agency‘s burden-of-proof determination, suggesting
that it erred by requiring corroboration of his credible testimony; ―[the agency] was
required to explain why it believed that the evidence it demanded was reasonably
available to the Petitioner to obtain,‖ but ―[n]o such assertion was made.‖ Pet‘r‘s Br. 14.
A similar invocation was made during the administrative appeal, see A.R. 116, although
the BIA did not address the matter in its opinion. Vasquez‘s ―passing reference‖ to this
question does not clarify upon what grounds he might wish to challenge the agency‘s
decision, and whether (in turn) those grounds are rooted in fact or law—whether, for
example, he wishes to allege that the process used in requiring collaboration was in some
way faulty. Hence, we deem the matter to be waived. See Laborers‘ Int‘l Union v.
Foster Wheeler Corp., 26 F.3d 375, 398 (3d Cir. 1994); see also 8 U.S.C. § 1252(b)(4)
(―No court shall reverse a determination made by a trier of fact with respect to the
availability of corroborating evidence . . . unless the court finds . . . that a reasonable trier
of fact is compelled to conclude that such corroborating evidence is unavailable.‖);
Sandie v. Att‘y Gen., 562 F.3d 246, 252 n.2 (3d Cir. 2009) (explaining the corroboration
mechanism of the REAL ID Act, which applies to this petition).

                                                5
to grant us jurisdiction. Jarbough v. Att‘y Gen., 483 F.3d 184, 190 (3d Cir. 2007).3

       Accordingly, for the foregoing reasons, we will dismiss the petition for review in

part and deny it in part.




3
 Because we have seen this mistake in several recent cases, we wish to point out that part
of the BIA‘s opinion was slightly in error. The BIA held, in part, that an affidavit from
one Sergio Mendez ―had not been authenticated pursuant to 8 C.F.R. § 1287.6(b)‖, A.R.
4; however, that regulation only pertains to ―official records.‖ Lin v. Att‘y Gen., 700
F.3d 683, 686–87 (3d Cir. 2012). As the agency articulated other reasons for rejecting or
otherwise limiting its reliance on the affidavit, this error is harmless.
                                            6
