                                                               NOT PRECEDENTIAL


                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 10-2453
                                      ___________

                             ELUI PEREIRA-POLANCO,
                                               Petitioner

                                           v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                          Respondent

                      ____________________________________

                       On Petition for Review of an Order of the
                            Board of Immigration Appeals
                              (Agency No. A44 921 747)
                     Immigration Judge: Honorable Annie S. Garcy
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  December 16, 2010

        Before: FUENTES, GREENAWAY, Jr. and NYGAARD, Circuit Judges

                          (Opinion filed December 17, 2010)
                                     ___________

                                       OPINION
                                      ___________

PER CURIAM

      Elui Pereira-Polanco, a citizen of the Dominican Republic, has been a lawful

permanent resident of the United States since 1994. In July 2001, he pleaded guilty in
New Jersey to the distribution of a controlled dangerous substance. See N.J. Stat. Ann.

§§ 2C:35-5a(1) and 2C:35-5b(3). The Government charged Pereira-Polanco with

removability under Immigration and Nationality Act (“INA”) § 237(a)(2)(B)(i) [8 U.S.C.

§ 1227(a)(2)(B)(i)], as an alien who, after admission, was convicted of violating a law

relating to a controlled substance. Pereira-Polanco appeared before an Immigration

Judge (“IJ”), conceded that he was removable, and applied for relief under the United

Nations Convention Against Torture (“CAT”).1 He alleged that he will be tortured by a

gang, Chicho Buloba, which has threatened his family and murdered his cousin. Pereira-

Polanco supported his account with a police report, death records, his brother’s

testimony, and affidavits from family members who apparently are in hiding. He also

testified that three gang members were arrested in connection with the murder of his

cousin, but that he was unaware whether they were prosecuted. A news article in the

record stated that some police officers, who were members of the Chicho Buloba gang,

were fired from their jobs.

       The IJ denied relief, concluding that the gang members’ arrest demonstrated that

the government of the Dominican Republic “lack[s] . . . any desire to tolerate the gang’s

activities or their actions against the Polanco family.” The Board of Immigration

Appeals (“BIA”) affirmed without opinion on April 27, 2010. Pereira-Polanco filed a




       1
        The IJ noted Pereira-Polanco’s conviction rendered him ineligible for
cancellation of removal, waivers of removal, asylum, and withholding of removal under
§ 241(b)(3) of the INA. Pereira-Polanco does not challenge these determinations.

                                            2
timely petition for review.2 The Government has filed a motion to dismiss.

       Because Pereira-Polanco is a criminal alien, this Court has jurisdiction to review

only constitutional claims, “pure questions of law,” and “issues of application of law to

fact, where the facts are undisputed and not the subject of challenge.” Kamara v. Att’y

Gen., 420 F.3d 202, 211 (3d Cir. 2005) (quotations and citations omitted). The

Government argues that Pereira-Polanco “has raised no such claims . . . .” We disagree.

Pereira-Polanco presents the legal question whether the BIA erred in concluding that he

did not meet his burden to show his eligibility for CAT relief.3 See Toussaint v. Att’y

Gen., 455 F.3d 409, 412 n.3 (3d Cir. 2006) (“[t]he question here involves not disputed

facts but whether the facts, even when accepted as true, sufficiently demonstrate that it is

more likely than not that [Toussaint] will be subject to persecution or torture upon

removal to Haiti.”). Accordingly, we will deny the motion to dismiss.

       To be eligible for withholding of removal under the CAT, “[t]he burden of proof is

on the applicant . . . to establish that it is more likely than not that he or she would be

tortured if removed to the proposed country of removal.” 8 C.F.R. § 1208.16(c)(2); see

also Kamara, 420 F.3d at 212-13. Torture is defined as the intentional infliction of severe


2
 Pereira-Polanco initiated these proceedings by filing an Entry of Appearance form on
May 21, 2010. The Clerk directed the parties to comment on whether that document
constituted a petition for review. Perereira-Polanco did not specifically respond, but he
did file a proper petition for review on May 24, 2010. The Government argues that the
Entry of Appearance form did not constitute a petition for review, but concedes that
Pereira-Polanco cured the defect with the petition that he filed on May 24, 2010.
3
 Pereira-Polanco also faults the BIA for affirming the IJ’s decision without issuing its
own opinion. We have held, however, that the BIA’s affirmance without opinion
pursuant to the streamlining regulations does not constitute a violation of due process.
                                               3
pain or suffering “by or at the instigation of or with the consent or acquiescence of a

public official or other person acting in an official capacity.” 8 C.F.R. § 1208.18(a)(1).

“For purposes of CAT claims, acquiescence to torture requires only that government

officials remain willfully blind to torturous conduct and breach their legal responsibility

to prevent it.” Silva-Rengifo v. Att’y Gen., 473 F.3d 58, 70 (3d Cir. 2007). In

considering an application for relief under the CAT, the IJ must consider “all evidence

relevant to the possibility of future torture.” 8 C.F.R. § 1208.16(c)(3). This Court

reviews whether an alien has demonstrated a likelihood of torture under the substantial

evidence standard. See Wang v. Ashcroft, 368 F.3d 347, 350 (3d Cir. 2004).

       Pereira-Polanco argues that the IJ erred in determining that he failed to

demonstrate that the government of the Dominican Republic is willfully blind to the

gang’s torturous activities. Pereira-Polanco cites the dismissal of police officers with

gang ties as evidence of the government’s involvement in torture. But the dismissals

themselves suggest that the government seeks to eliminate corruption. Furthermore, the

arrests that were made in connection with murder of Pereira-Polanco’s cousin further

undermine his torture claim. Cf. Rodriguez Morales v. Att’y Gen., 488 F.3d 884, 891

(11th Cir. 2007) (denying CAT claim where Colombian police investigated alien’s

complaints against guerilla organization). While Pereira-Polanco’s family members have

gone into hiding because of the gang’s threats, there is no indication that the police have

refused to act after being asked to intervene. Pereira-Polanco further claims that the IJ

should have granted relief based on the State Department Country Reports “which


See Dia v. Ashcroft, 353 F.3d 228, 238 (3d Cir. 2003) (en banc).
                                             4
describe police and military involvement in criminal activity.” Such a description,

however, does little to advance his claim that the government seeks to torture him

through its ties to the Chicho Buloba gang.

         Pereira-Polanco also argues that the BIA should have remanded the case based on

his criminal attorney’s failure to advise him of the immigration consequences of his state

court guilty plea. In Padilla v. Kentucky, 130 S. Ct. 1473, 1483, (2010), the Supreme

Court held that “[w]hen the law is not succinct and straightforward . . ., a criminal

defense attorney need do no more than advise a noncitizen client that pending criminal

charges may carry a risk of adverse immigration consequences . . . [b]ut when the

deportation consequence is truly clear, . . . the duty to give correct advice is equally

clear.” Pereira-Polanco’s suggestion that he will be granted post-conviction relief based

on Padilla is speculative, however, and we have held that the pendency of post-conviction

motions do not negate the finality of criminal convictions for immigration purposes. See

Paredes v. Att’y Gen., 528 F.3d 196, 198-99 (3rd Cir. 2008).

         For the above reasons, we will deny the petition for review.4




4
    The Government’s motion to dismiss is denied.
                                              5
