         10-3988-ag
         Qureshi v. Holder
                                                                                         BIA
                                                                                   Abrams, IJ
                                                                                 A056 073 070
                                  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 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
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of New
 4       York, on the 15th day of February, two thousand twelve.
 5
 6       PRESENT:
 7                PIERRE N. LEVAL,
 8                JOSÉ A. CABRANES,
 9                RAYMOND J. LOHIER, JR.,
10                     Circuit Judges.
11       _____________________________________
12
13       SHAHBAB QURESHI,
14                Petitioner,
15
16                           v.                                   10-3988-ag
17                                                                NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:                  Amy Nussbaum Gell, Gell & Gell, New
24                                        York, New York.
25
26       FOR RESPONDENT:                  Tony West, Assistant Attorney General;
27                                        Blair O’Connor, Assistant Director;
28                                        Briena L. Strippoli, Trial Attorney,
29                                        Office of Immigration Litigation,
30                                        United 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

 4   is DENIED.

 5       Petitioner Shahbab Qureshi, a native and citizen of

 6   Pakistan, seeks review of a September 14, 2010, decision of

 7   the BIA affirming the April 13, 2010, decision of an

 8   Immigration Judge (“IJ”) denying his application for asylum,

 9   withholding of removal and relief under the Convention Against

10   Torture (“CAT”).   In re Shahbab Qureshi, No. A056 073 070

11   (B.I.A. Sept. 14, 2010), aff’g No. A056 073 070 (Immig. Ct.

12   N.Y. City Apr. 13, 2010).   We assume the parties’ familiarity

13   with the underlying facts and procedural history of the case.

14       We have considered both the IJ’s and the BIA’s opinions.

15   Zaman v. Mukasey, 514 F3d 233, 237 (2d Cir. 2008).     The

16   applicable standards of review are well-established.     8 U.S.C.

17   § 1252(b)(4)(B); Aliyev v. Mukasey, 549 F.3d 111, 115 (2d Cir.

18   2008).

19      I.    Withholding of Removal

20       Withholding of removal is not available to an alien under

21   either the Immigration and Nationality Act (“INA”) or the CAT

22   where that alien has been convicted of a “particularly serious


                                    2
 1   crime.”    See 8 U.S.C. § 1231(b)(3)(B)(ii); 8 C.F.R.

 2   § 1208.16(d)(2).    Here, the agency concluded that Qureshi was

 3   ineligible for withholding of removal because his conviction

 4   constituted a “particularly serious crime.”    Under 8 U.S.C.

 5   § 1252(a)(2)(C), we lack jurisdiction to review final orders

 6   of removal against aliens who are removable by reason of

 7   having committed certain criminal offenses, including

 8   aggravated felonies that constitute particularly serious

 9   crimes.    See De La Rosa v. Holder, 598 F.3d 103, 107 (2d Cir.

10   2010).    The limitation on our review, however, is not

11   absolute, and we    retain jurisdiction to review

12   “constitutional claims or questions of law,”    8 U.S.C.

13   § 1252(a)(2)(D), which we review de novo, see Pierre v.

14   Holder, 588 F.3d 767, 772 (2d Cir. 2009).

15       To the extent that Qureshi argues that the agency

16   improperly applied legal precedent to conclude that his crime

17   was particularly serious, he raises a question of law over

18   which we have jurisdiction.    8 U.S.C. § 1252(a)(2)(D).   Where,

19   as in this case, an alien’s conviction is not per se

20   particularly serious, the agency generally evaluates on a

21   case-by-case basis whether an alien’s offense constitutes a

22   “particularly serious crime,” using the factors set forth in


                                     3
 1   In re Frentescu, 18 I&N Dec. 244 (BIA 1982).   These factors

 2   include: (1) the nature of the conviction; (2) the

 3   circumstances and underlying facts of the conviction; (3) the

 4   type of sentence imposed; and (4) whether the type and

 5   circumstances of the crime indicate that the alien will be a

 6   danger to the community.   In re Frentescu, 18 I&N Dec. at

 7   245-46.   However, the agency’s approach to evaluating whether

 8   a crime is particularly serious “has evolved since the

 9   issuance of [its] decision in [In re Frentescu],” particularly

10   with respect to the consideration of the type of sentence

11   imposed, and whether an alien is likely to be a danger to the

12   community.   In re N-A-M-, 24 I&N Dec. 336, 342 (BIA 2007)

13   (“[T]he proper focus for determining whether a crime is

14   particularly serious is on the nature of the crime and not the

15   likelihood of future serious misconduct.”); id. at 347

16   (observing that the Attorney General has concluded that “the

17   sentence imposed is not a dominant factor in determining

18   whether a conviction is a particularly serious crime”).

19   Accordingly, neither the sentence imposed nor whether an alien

20   is likely to be a future danger to the community are necessary

21   factors in determining whether an alien’s conviction was for a

22   “particularly serious crime.”


                                     4
 1       In this case, the agency properly applied the relevant

 2   precedent in concluding that Qureshi had been convicted of a

 3   particularly serious crime.   Both the IJ’s and the BIA’s

 4   decisions discuss the nature of the offense – sexual

 5   intercourse with a 15-year old girl – and the circumstances

 6   and facts underlying the offense – that Qureshi ignored an

 7   order of protection in order to continue seeing the girl, and

 8   that the sexual intercourse occurred after the order of

 9   protection was issued.   Because both the IJ and the BIA

10   engaged in a case-specific analysis of Qureshi’s offense, and

11   because they applied the factors required by the agency’s

12   precedent, the agency committed no error of law in denying

13   Qureshi’s request for withholding of removal under either the

14   INA or the CAT.   See In re N-A-M-, 24 I&N Dec. at 342.

15       Qureshi also argues that the IJ and the BIA failed to

16   consider certain facts and circumstances underlying his

17   conviction, including that he and the 15-year old girl were in

18   love, and that he assumed that the order of protection was

19   premised on the differences in their religions.   This argument

20   is belied by the record, as the IJ explicitly discussed

21   Qureshi’s alleged feelings for the girl and the BIA noted his

22   religion argument.   Accordingly, these arguments, “merely


                                    5
 1   quarrel[] over the correctness of the factual findings or

 2   justification for the discretionary choices” in these

 3   proceedings,   Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d

 4   315, 329 (2d Cir. 2006), and, as such, raise neither questions

 5   of law nor constitutional claims.

 6   II. Deferral of Removal Under the CAT

 7       Qureshi argues that the agency’s denial of his request

 8   for deferral under the CAT is not supported by substantial

 9   evidence in the record.

10       Here, substantial evidence supports the agency’s

11   conclusion that Qureshi failed to demonstrate that it was more

12   likely than not that he would be tortured if he returned to

13   Pakistan.   Qureshi argues that he will be tortured based on

14   his father’s membership in the Pakistani People’s Party.

15   Nothing in the record, however, supports this contention,

16   particularly as evidence demonstrates that the Pakistani

17   People’s Party governs Pakistan, and has formed a coalition

18   with the Muslim League, and that Qureshi testified that he was

19   never politically active in Pakistan.   Further, other than

20   Qureshi’s testimony, which was brief and speculative on this

21   issue, nothing in the record supports his contention that he

22   will be tortured because he lived in the United States and


                                    6
 1   will be seen as pro-American, or that his criminal conviction

 2   in this country will lead to torture in Pakistan.     Finally,

 3   the record does not support Qureshi’s claim that the police

 4   will torture him because they did not conduct an investigation

 5   and because he will continue to seek justice for his father’s

 6   murder, as documents in support of his asylum application

 7   demonstrate that the police conducted a year-long

 8   investigation into his father’s death.    Absent solid support

 9   in the record, Qureshi’s claim that he will be tortured in

10   Pakistan for any of these reasons is too speculative to merit

11   relief.    See Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d

12   Cir. 2005).   Because the record does not show that it is more

13   likely than not that Qureshi will be tortured in Pakistan,

14   substantial evidence supports the agency’s denial of his

15   application for deferral under the CAT.

16       Finally, Qureshi argues that the BIA erred in failing to

17   consider evidence of conditions in Pakistan that he submitted

18   with his appeal.   The BIA, however, did not err as it is

19   prohibited from engaging in any fact finding in deciding

20   appeals.    See 8 C.F.R. § 1003.1(d)(3)(iv).   Where a party

21   asserts that the BIA cannot decide an appeal without further

22   facts, that party must file a motion to remand, id., which

23   Qureshi did not do.

                                     7
1        For the foregoing reasons, the petition for review is

2    DENIED.   As we have completed our review, any stay of removal

3    that the Court previously granted in this petition is VACATED,

4    and any pending motion for a stay of removal in this petition

5    is DISMISSED as moot. Any pending request for oral argument in

6    this petition is DENIED in accordance with Federal Rule of

7    Appellate Procedure 34(a)(2), and Second Circuit Local Rule

8    34(b).

 9                               FOR THE COURT:
10                               Catherine O’Hagan Wolfe, Clerk
11
12




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