                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 18-2494
                                      ___________

                      FERNANDO FERNANDEZ DOMINGUEZ,
                                       Petitioner

                                             v.

              ATTORNEY GENERAL UNITED STATES OF AMERICA

                       ____________________________________

                        On Petition for Review of an Order of the
                             Board of Immigration Appeals
                             (Agency No. A023-324-819)
                          Immigration Judge: Lisa de Cardona
                       ____________________________________

                 Submitted Pursuant to Third Circuit LAR 34.1(a)
                                March 15, 2019
       Before: GREENAWAY, JR., RESTREPO and FUENTES, Circuit Judges

                            (Opinion filed: November 8, 2019)
                                      ___________

                                       OPINION*
                                      ___________

PER CURIAM




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Fernando Fernandez Dominguez, a native and citizen of the Dominican Republic,

petitions for review of a final order of removal. For the following reasons, we will deny

the petition.

       Fernandez Dominguez has a long history in the United States, the details of which

are documented in the administrative record and detailed in the decisions of the

Immigration Judge (“IJ”) and the Board of Immigration Appeals (“BIA”). Because the

parties are familiar with the record, we provide only a brief summary here. Fernandez

Dominguez entered the United States in 1973 as a temporary visitor and became a lawful

permanent resident in 1980. In 1992, he pleaded guilty in the United States District

Court for the District of New Jersey to conspiracy to distribute and to possess with intent

to distribute cocaine (21 U.S.C. § 846). In light of his substantial assistance to United

States law enforcement, he received a downward departure at sentencing and was

sentenced to fifty-one months. He was placed in deportation proceedings. The agency

determined that he had been convicted of an aggravated felony and controlled substance

violation and was found removable as charged. Pursuant to a 1994 final removal order,

Fernandez Dominguez was deported to the Dominican Republic.

       In 1999, and again in 2004, Fernandez Dominguez was paroled into the United

States to act as an informant for the Drug Enforcement Administration (“DEA”). He

worked as part of the inner circle of drug gang operatives and then provided advance

information to his DEA handler and other agents on large-scale scheduled drug

trafficking activities, assisting in the capture of several specific targets. His parole in

2004 was for a one-year period, but he has remained in the United States since then.

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       In 2017, Fernandez Dominguez was arrested by immigration authorities. He was

charged with removability as an alien without a valid immigrant visa or entry document,

8 U.S.C. § 1182(a)(7)(A)(i)(I). He conceded removability but applied for withholding of

removal under 8 U.S.C. § 1231(b)(3) and withholding or deferral of removal under the

Convention Against Torture (“CAT”), see 8 C.F.R. § 1208.17(a). He based his claims for

relief on his fear of retaliation by a number of named Dominican drug criminals, in light

of his role in aiding their prosecutions. He testified before an Immigration Judge (“IJ”)

as to the specifics of his cooperation and his fears of harm, along with reasons why he

believes that Dominican law enforcement officers are corrupt and would not protect him.

       In a written decision following the evidentiary hearing, the IJ denied relief. The IJ

found that Fernandez Dominguez credibly testified and reasonably corroborated his

claim. However, the IJ found that Fernandez Dominguez was statutorily ineligible for

withholding of removal under § 1231(b)(3) and under the CAT in light of his prior

conviction of a “particularly serious crime.” Regarding CAT deferral relief, the IJ found

that Fernandez Dominguez has a subjectively reasonable fear of future torture. Further,

the IJ acknowledged the pervasive corruption of security officials in the Dominican

Republic, and found that non-government actors would be able to find corrupt law

enforcement officers who would be complicit in torture or exercise willful blindness to

torture. However, the IJ concluded that Fernandez Dominguez did not establish that it

was more likely than not that the individuals in the Dominican Republic whom he fears

will know of his return to the country, will hold him responsible for their prosecutions in



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the United States, and will have the means to bribe officials to consent to or acquiesce to

his being tortured at their hands.

       The Board of Immigration Appeals (“BIA”) dismissed Fernandez Dominguez’s

appeal. As the BIA noted, Fernandez Dominguez did not appeal from the denial of

withholding of removal under the Act and under the CAT. Concerning his request for

deferral of removal under the CAT, the BIA found no clear error in the IJ’s determination

that Fernandez Dominguez had not shown that it was more likely than not that he would

be harmed if he returns to the Dominican Republic. Fernandez Dominguez timely filed a

pro se petition for review.

       We generally lack jurisdiction to review a final order of removal against a criminal

alien, like Fernandez Dominguez, who is removable for having committed an offense

covered in § 1227(a)(2). See 8 U.S.C. § 1252(a)(2)(C). We retain jurisdiction under

§ 1252(a)(2)(D) to address colorable constitutional claims and questions of law. Green v.

Att’y Gen., 694 F.3d 503, 506 (3d Cir. 2012). With respect to CAT claims, the question

of the likelihood of torture is a mixed one, comprised of a factual component (“what is

likely to happen to the petitioner if removed”) and a legal one (“does what is likely to

happen amount to the legal definition of torture”); only the latter is reviewable under

§ 1252(a)(2)(D). Kaplun v. Att’y Gen., 602 F.3d 260, 271 (3d Cir. 2010).

       Fernandez Dominguez argues that the BIA incorrectly used a clear error standard,

rather than a de novo standard, when reviewing the IJ’s decision on the question of

whether it was more likely than not that he would be tortured upon his return to the

Dominican Republic. In reaching her decision, the IJ made subsidiary factual findings

                                             4
that Fernandez Dominguez had not shown that the individuals he fears would more likely

than not be aware of his return, that they would know about his role in their prosecutions,

or that they would have the means to harm him. In finding that Fernandez Dominguez

did not meet his burden of proof in establishing that each step in the hypothetical chain of

events would more likely than not occur, the IJ’s denial of CAT relief was based on

factual findings. The BIA properly reviewed these factual findings for clear error. See

8 C.F.R. § 1003.1(d)(3)(i); Kaplun, 602 F.3d at 271-72.

       Fernandez Dominguez contends that the IJ failed to discuss the most significant

facts in making the above factual determinations. See Cham v. Att’y Gen., 445 F.3d 683,

693 (3d Cir. 2006) (“Due process demands that an immigration judge ‘actually consider

the evidence and argument that a party presents.’”) (citation omitted). Specifically,

Fernandez Dominguez contends that the IJ’s decision omitted significant facts concerning

his recent housemate “Ledwin” and Ledwin’s associate “Elvis.” Fernandez Dominguez

stated that they were drug traffickers, and that Elvis went into hiding because he owed a

certain drug supplier money. The supplier eventually did find Elvis, without Fernandez

Dominguez’s help, but Ledwin and Elvis nonetheless blamed him for providing Elvis’s

location. Fernandez Dominguez averred his belief that, as revenge, Ledwin and Elvis

were responsible for his arrest by immigration authorities, that they have reason to have

him killed, and that Ledwin has ties to corrupt police officers in the Dominican Republic.

We disagree with Fernandez Dominguez’s contention. The IJ’s decision reflects that the

above information about Ledwin Batista and Elvis Hernandez was noted and considered

within the context of his CAT claim. (See, e.g., A.R. 61-62, 65, 71-73.)

                                             5
       Fernandez Dominguez also asserts that the BIA failed to address his argument that

the IJ failed to consider his testimony about how the individuals he fears would know

about his informant status and about his presence in the Dominican Republic. He points

to no particular testimony in his brief, but in his brief to the BIA he referred to pages 78-

80 of the hearing transcript. Upon review, it is apparent that the IJ accounted for the

information presented in that portion of testimony, along with other testimony on the

topic. For instance, the IJ noted Fernandez Dominguez’s testimony that certain

individuals would have been suspicious about how he was able to return to the United

States in 1999, via air travel, after his deportation in 1994 (see A.R. 60), and about why,

after he and others had been arrested in a DEA operation, he was the only one who did

not face prosecution (see A.R. 61). Further, the IJ acknowledged Fernandez

Dominguez’s testimony that certain individuals would be able to locate him in the

Dominican Republic through family connections, and that he has become aware that he is

being blamed for having sent certain individuals to prison (see id.). Thus, contrary to

Fernandez Dominguez’s contention, it appears that the IJ did not fail to consider his

testimony; by acknowledging the IJ’s factual findings in considering the entirety of the

record, the BIA did not fail to address Fernandez Dominguez’s argument in that regard.

See Huang v. Att’y Gen., 620 F.3d 372, 388 (3d Cir. 2010) (the IJ and BIA need not

“discuss every piece of evidence” presented by an applicant).

       As for his argument that the BIA misunderstood the facts of the case and

committed legal error thereby, Fernandez Dominguez points to the BIA’s reference to the

individuals he fears as his “associates,” when in reality, he was merely posing as their

                                              6
associate while working as an informant. This argument has no merit, as the BIA both

recognized Fernandez Dominguez’s “role as a confidential informant in the United

States” and cited the IJ’s detailed account concerning Fernandez Dominguez’s various

activities in his informant relationship with the DEA. (A.R. 3.)

       We have considered Fernandez Dominguez’s arguments and discern no due

process failure or other legal error. Accordingly, we will deny his petition for review.




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