    16-444
    Fenelon v. Lynch
                                                                                       BIA
                                                                                Bukszpan, IJ
                                                                               A038 921 625
                            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.

         At a stated term of the United States Court of Appeals for
    the Second Circuit, held at the Thurgood Marshall United States
    Courthouse, 40 Foley Square, in the City of New York, on the
    12th day of January, two thousand seventeen.

    PRESENT:
             JON O. NEWMAN,
             JOHN M. WALKER, JR.,
             REENA RAGGI,
                  Circuit Judges.
    _____________________________________

    MARC ANTOINE FENELON,
             Petitioner,

                       v.                                            16-444
                                                                     NAC
    LORETTA E. LYNCH, UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:                      Marc Antoine Fenelon, pro se,
                                         Uniondale, N.Y.

    FOR RESPONDENT:                      Benjamin C. Mizer, Principal Deputy
                                         Assistant Attorney General; Leslie
                                         McKay, Senior Litigation Counsel;
                                         Lisa M. Damiano, Trial Attorney,
                                         Office of Immigration Litigation,
                                         U.S.    Department   of    Justice,
                                         Washington, D.C.
    UPON DUE CONSIDERATION of this petition for review of a

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

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

DISMISSED IN PART and DENIED IN PART.*

    Petitioner Marc Antoine Fenelon, a native and citizen of

Haiti, seeks review of a January 14, 2016 decision of the BIA

denying Fenelon’s motion to remand and affirming a December 14,

2009 decision of an Immigration Judge (“IJ”), denying Fenelon’s

application for withholding of removal and relief under the

Convention Against Torture (“CAT”).       In re Marc Antoine

Fenelon, No. A038 921 625 (B.I.A. Jan. 14, 2016), aff’g No. A038

921 625 (Immig. Ct. N.Y. City Dec. 14, 2009).     We assume the

parties’ familiarity with the underlying facts and procedural

history in this case.

    We have reviewed the decisions of both the IJ and BIA “for

the sake of completeness.”   Wangchuck v. DHS, 448 F.3d 524, 528

(2d Cir. 2006).   The applicable standards of review are well

established.   8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder,

562 F.3d 510, 513 (2d Cir. 2009).

    Despite Fenelon’s assertions otherwise, we lack

jurisdiction to review a final order of removal against an alien

who is removable by reason of having committed a controlled



* Petitioner’s motion to proceed in forma pauperis is GRANTED.
                              2
substance offense.    8 U.S.C. §§ 1252(a)(2)(C),

1227(a)(2)(A)(iii); Ortiz-Franco v. Holder, 782 F.3d 81, 86 (2d

Cir. 2015) (holding that the jurisdictional bar applies to the

denial of deferral of removal under the CAT).      Nevertheless,

we retain jurisdiction to consider “constitutional claims or

questions of law,” 8 U.S.C. § 1252(a)(2)(D), which we review

de novo, Pierre v. Holder, 588 F.3d 767, 772 (2d Cir. 2009).

For jurisdiction to attach, however, such claims must be

colorable.    Barco-Sandoval v. Gonzales, 516 F.3d 35, 40-41 (2d

Cir. 2008).

I.   Particularly Serious Crime

     An alien is barred from withholding of removal under both

the Immigration and Nationality Act (“INA”) and the CAT if he

has been convicted of a particularly serious crime.     8 U.S.C.

§ 1231(b)(3) (INA); 8 C.F.R. § 1208.16(d)(2) (CAT).    In Matter

of Y-L-, the Attorney General adopted a strong presumption that

drug trafficking aggravated felonies are particularly serious

crimes.   See 23 I. & N. Dec. 270 (A.G. 2002), overruled on other

grounds by Khouzam v. Ashcroft, 361 F.3d 161, 170–71 (2d Cir.

2004).

     We reject both Fenelon’s general challenge to Matter of

Y-L- and his argument that the agency failed to sufficiently

explain its application in his case.   The presumption in Matter


                                3
of Y-L- is entitled to Chevron deference: the Attorney General’s

creation of strong presumptions for drug trafficking aggravated

felonies was a reasonable interpretation of the statute because

the text itself provides the Attorney General with discretion

to make the determination.    See 8 U.S.C. § 1231(b)(3)(B)(ii);

Miguel-Miguel v. Gonzales, 500 F.3d 941, 945-49 (9th Cir. 2007)

(expressly upholding Matter of Y-L-’s presumptive standard).

Fenelon’s argument that the BIA did not sufficiently explain

its application of the Matter of Y-L- factors merely employs

the “rhetoric” of a question of law to “quarrel[] over the

correctness of the [agency’s] factual findings or justification

for [its] discretionary choices,“ which we lack jurisdiction

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

315, 329 (2d Cir. 2006).     Here, the IJ cited Matter of Y-L-,

articulated the factors relevant to rebutting the presumption,

determined that Fenelon submitted no evidence to rebut the

presumption, and discussed the circumstances of Fenelon’s

conviction.     Fenelon points to no error in the agency’s

decision, and there is no indication that the agency applied

an incorrect standard or ignored evidence.

II. Convention Against Torture

    Fenelon’s challenges to the agency’s denial of CAT relief

do not raise a colorable constitutional claim or question of


                                4
law.   He argues that the agency ignored evidence and that its

factual findings are contrary to the record evidence.   However,

both the IJ and BIA explicitly discussed Fenelon’s CAT evidence,

but agreed that he failed to demonstrate that it was more likely

than not he would be tortured by or with the acquiescence of

the government.   The record therefore does not compellingly

suggest that any evidence was ignored.    See Xiao Ji Chen, 471

F.3d at 336 n.17 (“[W]e presume that [the agency] has taken into

account all the evidence before [it], unless the record

compellingly suggests otherwise . . . .”).   Nor did the agency

err in its consideration of the expert report.   See id. at 342

(observing that the weight accorded to the applicant's evidence

in immigration proceedings lies largely within the discretion

of the agency).     The BIA acknowledged that mentally ill

detainees may be singled out for abuse because of bizarre

behavior and the inability to comply with prison rules.     The

report, however, spoke generally about the potential problems

that untreated mental illness can create for Haitian prisoners,

did not address the potential impact of Fenelon’s mental illness

on his behavior in prison, and Fenelon did not present any

evidence that he was likely to exhibit such non-compliant

behavior, other than to testify that he was diagnosed with

depression and had experienced suicidal tendencies.     Fenelon


                               5
has therefore failed to identify any colorable constitutional

or legal questions concerning the agency’s denial of CAT relief.

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

III. Motion to Remand

    Finally, Fenelon does not raise a constitutional claim or

question of law concerning the BIA’s denial of his motion to

remand.    See Li Yong Cao v. Dep't of Justice, 421 F.3d 149, 157

(2d Cir. 2005) (A motion to remand based on new evidence is

subject to the same standards as motions to reopen.); Durant

v. INS, 393 F.3d 113, 114 (2d Cir. 2004) (holding that the

criminal jurisdiction bar applies to the denials of motions to

reopen).     We review the BIA’s denial of a motion to remand for

consideration of new evidence for abuse of discretion.        Li Yong

Cao, 421 F.3d at 157.      Fenelon argues that the BIA erroneously

found   that   his   new   evidence   was   “duplicative”   and   “not

material.”     The BIA did not legally err when it found that

Fenelon’s evidence was duplicative or immaterial: he submitted

an updated 2010 report that largely quoted verbatim from the

2007 and 2008 reports from the same expert; the BIA explained

that the report related an individual who, unlike Fenelon who

suffers from depression, had been diagnosed with paranoid

schizophrenia; and the IJ had observed that Fenelon did not

indicate that he behaved abnormally when off his medication for


                                  6
two weeks in 2006.

    For the foregoing reasons, the petition for review is

DISMISSED IN PART and DENIED IN PART.   As we have completed our

review, any stay of removal that the Court previously granted

in this petition is VACATED, and any pending motion for a stay

of removal in this petition is DISMISSED as moot.   Any pending

request for oral argument in this petition is DENIED in

accordance with Federal Rule of Appellate Procedure 34(a)(2),

and Second Circuit Local Rule 34.1(b).

                             FOR THE COURT:
                             Catherine O=Hagan Wolfe, Clerk




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