     14-3705
     Lomtadze v. Lynch
                                                                                       BIA
                                                                                Sagerman, IJ
                                                                               A057 326 857
                              UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT

                                    SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE
(WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1        At a stated term of the United States Court of Appeals for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   12th day of January, two thousand sixteen.
 5
 6   PRESENT:
 7            DENNIS JACOBS,
 8            DEBRA ANN LIVINGSTON,
 9            GERARD E. LYNCH,
10                 Circuit Judges.
11   _____________________________________
12
13   GIORGI LOMTADZE,
14            Petitioner,
15
16                       v.                                          14-3705
17                                                                   NAC
18   LORETTA E. LYNCH, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Alexander J. Segal, New York, N.Y.
24
25   FOR RESPONDENT:                     Benjamin C. Mizer, Acting Assistant
26                                       Attorney General; Ernesto H. Molina,
27                                       Jr., Assistant Director; Bernard A.
28                                       Joseph, Trial Attorney, Office of
29                                       Immigration Litigation, United
30                                       States Department of Justice,
31                                       Washington, D.C.
1        UPON DUE CONSIDERATION of this petition for review of a

2    Board of Immigration Appeals (“BIA”) decision, it is hereby

3    ORDERED, ADJUDGED, AND DECREED that the petition for review is

4    DISMISSED in part and DENIED in part.

5        Petitioner Giorgi Lomtadze, a native of the former Soviet

6    Union and a citizen of Georgia, seeks review of a September 18,

7    2014, decision of the BIA affirming an April 9, 2014, decision

8    of an Immigration Judge (“IJ”) denying Lomtadze’s application

9    for withholding of removal and relief under the Convention

10   Against Torture (“CAT”).     In re Giorgi Lomtadze, No. A057 326

11   857 (B.I.A. Sept. 18, 2014), aff’g No. A057 326 857 (Immig. Ct.

12   Fishkill Apr. 9, 2014).      We assume the parties’ familiarity

13   with the underlying facts and procedural history in this case.

14       We have reviewed both the IJ’s and the BIA’s opinions “for

15   the sake of completeness.”    Zaman v. Mukasey, 514 F.3d 233, 237

16   (2d Cir. 2008) (quoting Wangchuck v. Dep’t of Homeland Sec.,

17   448 F.3d 524, 528 (2d Cir. 2006)).         The applicable standards

18   of review are well established.        See 8 U.S.C. § 1252(b)(4)(B);

19   Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

20       Our   review   is   limited   to    constitutional   claims   and

21   questions of law because Lomtadze is removable based on his

                                       2
1    conviction of an aggravated felony.            8 U.S.C. § 1252(a)(2)(C),

2    (D); Ortiz-Franco v. Holder, 782 F.3d 81, 86 (2d Cir. 2015)

3    (holding that “criminal bar” to our jurisdiction extends to CAT

4    deferral).

5        With respect to the agency’s denial of deferral of removal

6    under the CAT, Lomtadze raises no constitutional claim or

7    question of law.     He challenges only the agency’s finding that

8    he did not establish a likelihood of being tortured in Georgia;

9    however, the likelihood of a future occurrence is a finding of

10   fact.   Hui Lin Huang v. Holder, 677 F.3d 130, 134 (2d Cir. 2012).

11   Consequently, we lack jurisdiction to consider this claim.

12       With respect to withholding of removal, Lomtadze advances

13   two arguments: that the agency failed to consider the sentence

14   imposed, and that the agency credited the Pre-Sentence Report

15   over his testimony.           We lack jurisdiction to consider the

16   latter,   as   it   is    a    challenge      to    the   agency’s   factual

17   determinations      and       weighing   of        evidence.     8    U.S.C.

18   § 1252(a)(2)(C), (D); Argueta v. Holder, 617 F.3d 109, 112-13

19   (2d Cir. 2010).

20       Regarding the former, whether the agency has failed to

21   consider the relevant factors is a question of law.                      Cf.

                                          3
1    Argueta, 617 F.3d at 113 (“Argueta’s contention that the IJ

2    weighed factors that the IJ was prohibited from considering is

3    quite distinct from the unreviewable argument that the IJ

4    balanced   improperly   those     factors     that   the     IJ   could

5    consider.”).   However, a review of the record indicates that

6    the   agency   adequately   considered      the   sentence    imposed,

7    particularly in light of agency precedent that “the sentence

8    imposed is not a dominant factor in determining whether a

9    conviction is for a particularly serious crime.”       In re N-A-M-,

10   24 I. & N. Dec. 336, 343 (B.I.A. 2007).

11         For the foregoing reasons, the petition for review is

12   DISMISSED in part and DENIED in part.

13                                   FOR THE COURT:
14                                   Catherine O=Hagan Wolfe, Clerk




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