                                                         NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ____________

                                       No. 16-1538
                                      ____________

                              DAVID ARTURO AGUILAR,
                           a/k/a DAVID ARTURO-AGUILAR,

                                                               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. A200-765-683)
                            Immigration Judge: Amit Chugh
                        __________________________________

                     Submitted Pursuant to Third Circuit LAR 34.1(a)
                                      June 8, 2016

              Before: CHAGARES, KRAUSE and ROTH, Circuit Judges

                            (Opinion filed: December 13, 2016)
                                      ____________

                                        OPINION*
                                      ____________


PER CURIAM




*
 This disposition is not an opinion of the full court pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       David Arturo Aguilar (“Aguilar”) petitions for review of the Board of Immigration

Appeals’ final order of removal. For the reasons that follow, we will dismiss the petition

for review for lack of jurisdiction.

       Aguilar, a native and citizen of El Salvador, entered the United States without

admission or parole. On January 6, 2012, he was convicted in the New Jersey Superior

Court, Union County, of the offense of aggravated assault, in violation of N.J. Stat. Ann.

§ 2C:12-1(b)(1), a second degree felony, for which he was sentenced to a term of

imprisonment of four (4) years.1 The Department of Homeland Security then sought his

removal from the United States pursuant to 8 U.S.C. § 1182(a)(2)(A)(i)(I), as an alien

convicted of a crime involving moral turpitude, and 8 U.S.C § 1182(a)(6)(A)(i), as an

alien present in the United States without being admitted or paroled. Aguilar appeared

with counsel before an Immigration Judge and conceded that he is removable as charged.

       Aguilar applied for statutory withholding of removal, 8 U.S.C. § 1231(b)(3), and

for relief under the Convention Against Torture (“CAT”). He claimed that he left El

Salvador due to a fear that he would be harmed by members of Mara Salvatrucha, or MS-

13. He alleged that his first encounter with the gang occurred in his hometown of

Sensuntepeque when he was just 11 years old. After being physically and

psychologically abused for refusing to join them, Aguilar joined the gang when he was

12 years old, and began stealing, extorting money, and dealing drugs. He alleged that, in

March 2004, he was attacked by gang members, apparently because he had disobeyed

orders. He went into hiding for a while and then crossed the border and went to live in

1
  Under § 2C:12-1(b)(1), a person is guilty of aggravated assault if he “[a]ttempts to
cause serious bodily injury to another, or causes such injury purposely or knowingly or
under circumstances manifesting extreme indifference to the value of human life
recklessly causes such injury.” N.J. Stat. Ann. 2C:12-1(b)(1).
                                              2
Fresno, California with his mother. There he picked fruits and vegetables. He alleged

that, eventually, he feared gang retaliation in Fresno itself and so he came to New Jersey.

Aguilar’s sister submitted an affidavit on his behalf, corroborating a shooting incident in

El Salvador, and Aguilar submitted country conditions evidence.

       On August 26, 2015, the Immigration Judge determined that Aguilar’s crime was a

“particularly serious crime” and thus that he was ineligible for withholding of removal

under both the Immigration & Nationality Act (“INA”), see 8 U.S.C. § 1231(b)(3)(B)(ii),

and the CAT, see 8 C.F.R. § 1208.16(c)(4) and (d)(2).2 The IJ reasoned that, although

Aguilar’s sentence was less than five (5) years and thus was not presumptively a

“particularly serious crime” under 8 U.S.C. § 1231(b)(3)(B)(iv), the record of his

conviction demonstrated that the crime was “particularly serious.” Specifically, the

Indictment stated that Aguilar did attempt to cause serious bodily injury to Junior

Romales Perez, a minor, and/or, did recklessly cause serious bodily injury to Junior

Romales Perez under circumstances manifesting extreme indifference to the value of

human life. Moreover, the IJ concluded, the sentence imposed and the “egregious” facts

and circumstances of the conviction also demonstrated that the crime was “particularly

serious.”


2
  In support of this eligibility determination, the agency looks to 8 U.S.C. § 1231(b)(3) of
the INA, which provides that, although “the Attorney General may not remove an alien to
a country if the Attorney General decides that the alien’s life or freedom would be
threatened in that country because of the alien’s race, religion, nationality, membership in
a particular social group, or political opinion,” id. at § 1231(b)(3)(A), an exception lies
where the Attorney General decides that the alien has “been convicted by a final
judgment of a particularly serious crime,” id. at § 1231(b)(3)(B)(ii). Under the CAT, the
agency looks to 8 C.F.R. § 1208.16, which provides that, although an alien shall be
granted withholding of removal where “the alien is more likely than not to be tortured in
the country of removal,” id. at § 1208.16(c)(4), an exception lies for aliens who have
been convicted of a “particularly serious crime,” id. at § 1208.16(d)(2).
                                                3
       On October 26, 2015, the IJ denied Aguilar’s application for deferral of removal

under the CAT. After reviewing Aguilar’s testimony, affidavits in support of his

application, and country conditions evidence, the IJ found that Aguilar generally was

credible but denied him relief on the ground that he did not meet his burden of proof to

show that it was more likely than not that he would be tortured in El Salvador by or with

the consent or acquiescence of a government official. The IJ acknowledged Aguilar’s

country conditions evidence showing the prevalence of violent gangs in El Salvador but

reasoned that extensive gang violence alone did not show government involvement in

what had happened to him. The IJ ordered Aguilar’s removal to El Salvador.

       Aguilar appealed to the Board of Immigration Appeals. Through counsel, Aguilar

argued that, although under In re N-A-M-, 24 I. & N. Dec. 336 (BIA 2007), a conviction

does not have to be an aggravated felony to be considered a “particularly serious crime,”

the IJ misapplied the factors identified in In re Frentescu, 18 I. & N. Dec. 244 (BIA

1982), for determining whether an alien whose sentence is less than five (5) years has

been convicted of a “particularly serious crime.” A.R. 18. Aguilar argued that, applying

Frentescu to his conviction for aggravated assault, it was clear that he had not committed

a “particularly serious crime” because the assault occurred only after he had attempted to

separate two individuals who were fighting. He reacted angrily only after one of those

individuals turned on him. A.R. 18, 21-23. Aguilar argued, in addition, that he had met

his burden of proof to show that it was more likely than not that he would be tortured by

gang members, and that government officials in El Salvador were accepting of MS-13’s

activities. A.R. 20.



                                             4
       On February 28, 2016, the Board dismissed the appeal. The Board agreed with the

IJ that Aguilar’s crime was a “particularly serious crime” that made him ineligible for

withholding of removal under either the INA or the CAT. The Board noted the elements

of § 2C:12-1(b)(1), and noted that Aguilar had conceded in his Form I-589 application

that he had, in fact, caused injury to the victim. Citing Denis v. Att’y Gen. of U.S., 633

F.3d 201, 216 (3d Cir. 2011), the Board observed that crimes entailing the use or threat of

force tend to be regarded as “particularly serious.” In addition, the Board remarked that

Aguilar’s four-year sentence reflected the seriousness of his crime. Accordingly, the

Board concluded that Aguilar was only eligible for deferral of removal under the CAT.

The Board then found no clear error in the IJ’s determination that Aguilar failed to meet

his burden of proof to show that, if returned to El Salvador, he will experience treatment

that would rise to the level of torture that is “inflicted 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).3

       Aguilar petitioned for review, and moved in this Court for a stay of removal. The

Attorney General moved to dismiss the petition for review for lack of jurisdiction. A

motions panel of this Court denied Aguilar a stay of removal and referred the Attorney

General’s motion to dismiss to a merits panel. Briefing ensued and the petition for

review is ripe for disposition. In his pro se brief, Aguilar argues that the IJ’s decision to

deny him relief under the CAT is not supported by substantial evidence. Based on the


3
  The IJ also made an alternative determination that he would not grant withholding of
removal in any event because Aguilar did not show membership in a cognizable
particular social group. The Board found it unnecessary to reach the merits of this
alternative determination, agreeing with the IJ that Aguilar’s crime was “particularly
serious” and thus that he is only eligible for deferral of removal under the CAT.
                                               5
Aguilar’s failure to raise any colorable legal or constitutional contentions, the Attorney

General has renewed her motion to dismiss the petition for review for lack of jurisdiction.

       We will grant the Attorney General’s motion and dismiss the petition for lack of

jurisdiction. Generally, the INA prohibits us from reviewing a final order of removal

against an alien who is removable by reason of having committed a criminal offense

covered in 8 U.S.C. § 1182(a)(2). See 8 U.S.C. § 1252(a)(2)(C) (precluding jurisdiction

to review final orders of removal against aliens who are removable for having been

convicted of criminal offenses listed in 8 U.S.C. § 1182(a)(2)). Section 1252(a)(2)(C)

generally eliminates judicial review of final orders of removal against aliens like Aguilar,

who are removable by reason of having committed a crime involving moral turpitude.

See Alaka v. Att’y Gen. of U.S., 456 F.3d 88, 102-03 (3d Cir 2006). Aguilar has waived

and failed to exhaust any argument that his conviction is not a crime involving moral

turpitude by conceding removability as charged, failing to raise this issue before the

Board, and failing to raise any argument in his pro se brief on appeal concerning this

issue. See Lie v. Ashcroft, 396 F.3d 530, 532 n.1 (3d Cir. 2005) (issue waived where not

raised in brief on appeal); 8 U.S.C. § 1252(d)(1) (court may review final order of removal

only where alien has exhausted all administrative remedies).

       Notwithstanding this jurisdictional limitation, we retain jurisdiction to review

colorable constitutional claims and questions of law that are raised in the petition for

review. 8 U.S.C. § 1252(a)(2)(D). A challenge to a denial of withholding of removal

based on ineligibility per se presents a reviewable question of law, Alaka, 456 F.3d at

104, but Aguilar’s brief raises no reviewable issue in this regard. He has raised what

amounts to a disagreement with the agency’s factual determination that he failed to

                                              6
sufficiently demonstrate that public officials in El Salvador would likely acquiesce in his

torture, and this argument is unreviewable. See Pieschacon-Villegas v. Att’y Gen. of

U.S., 671 F.3d 303, 309-10 (3d Cir. 2011). To the extent that Aguilar argues that the

agency failed to consider evidence related to the government of El Salvador’s willful

blindness or acquiescence, see Petitioner’s Brief at 12-20, he has failed to identify any

specific evidence that the agency allegedly overlooked.

       Furthermore, we see no merit to any argument that the Board misapplied its

precedent to the “particularly serious crime” determination, to the extent that such an

argument has been made.4 The governing statute, 8 U.S.C. § 1231(b)(3)(B), “contains no

limiting language restricting the Attorney General’s discretion to label crimes as

particularly serious and the long history of case-by-case determination of particularly

serious crimes counsels against attempts to craft a bright-line rule.” Denis, 633 F.3d at

214 (internal quotation marks, brackets, and citation omitted).5 Where the elements of

the conviction in question “suggest that the crime could potentially qualify as particularly

serious,” the Board does “‘not prohibit the examination of other evidence or indicate that

only conviction records and sentencing information’” may be used. Id. at 215 (quoting In

re N-A-M-, 24 I. & N. Dec. at 344). In short, “the categorical approach, used primarily in

determining removability,” does not apply. Id. The Board generally examines a variety

4
  We held in Alaka, 456 F.3d at 104, that a crime must be an aggravated felony to be
considered a “particularly serious crime.” The agency did not address whether Aguilar’s
crime was an aggravated felony, notwithstanding our express holding in Alaka, because
in In re M-H-, 26 I. & N. 26 (BIA 2012), the Board held that it would apply its contrary
holding in In re N-A-M- (that an alien’s crime need not be an aggravated felony to be
considered a “particularly serious crime”) to cases arising in this circuit, in order to
promote national uniformity. Despite the Board’s decision, we decline to address or
reevaluate Alaka here because the issue was neither raised nor briefed by the parties.
5
  In Denis, we determined that the alien’s conviction qualified as an aggravated felony,
633 F.3d at 213.
                                             7
of factors and does not exclude otherwise reliable information from consideration. Id.

Moreover, the Board generally categorizes crimes against persons as “particularly

serious,” see In re L-S-, 22 I. & N. Dec. 645, 649 (BIA 1999). Based on the elements of

§ 2C:12-1(b)(1), the Form I-589 admission, and the substantial four-year sentence,

Aguilar’s second-degree aggravated assault crime indisputably was “particularly serious”

under Board precedent.

       For the foregoing reasons, we will grant the Attorney General’s motion and

dismiss the petition for review for lack of jurisdiction.




                                              8
