    14-2362
    Sanchez v. Sessions
                                                                                       BIA
                                                                                    Page, IJ
                                                                               A045 060 116

                           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
    14th day of February, two thousand seventeen.


    PRESENT:
             PETER W. HALL,
             CHRISTOPHER F. DRONEY,
                  Circuit Judges,
             VICTOR A. BOLDEN,*
                  District Judge.
    _____________________________________

    LUZ DE ALBA SANTOS DE SANCHEZ, AKA
    LUZDEALBA SANTOS, AKA LUZ
    SANTOS-SANCHEZ,

                      Petitioner,

                      v.                                             14-2362

    JEFF SESSIONS, UNITED STATES ATTORNEY
    GENERAL,1

             Respondent.
    _____________________________________

    * Judge Victor A. Bolden, United States District Court for the District of
    Connecticut, sitting by designation.

    1 - Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General
    Jeff Sessions is automatically substituted as Respondent.
FOR PETITIONER:                JAMES A. LOMBARDI, New York, NY.

FOR RESPONDENT:                DAVID J. SCHOR, Trial Attorney, Kohsei
                               Ugumori, Senior Litigation Counsel,
                               for Benjamin C. Mizer, Principal
                               Deputy Assistant Attorney General,
                               Office of Immigration Litigation,
                               United States Department of Justice,
                               Washington, DC.

      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

DENIED.

      Petitioner Luz De Alba Santos De Sanchez (“Sanchez”), a

native and citizen of the Dominican Republic, seeks review of

a June 4, 2014, decision of the BIA affirming a June 10, 2013,

decision of an Immigration Judge (“IJ”) denying Sanchez’s

application for asylum, withholding of removal, and relief

under the Convention Against Torture (“CAT”).        In re Luz De Alba

Santos De Sanchez, No. A045 060 116 (B.I.A. June 4, 2014), aff’g

No. A045 060 116 (Immig. Ct. N.Y.C. June 10, 2013).         We assume

the   parties’   familiarity    with   the    underlying   facts   and

procedural history in this case.

      Sanchez challenges only the denial of deferral of removal

under the CAT.    8 C.F.R. § 1208.17.        That is a mandatory form

of relief that hinges on risk within the destination country.

                                  2
Id. §§ 1208.16(c), 1208.17.       It requires the applicant to show

that she would more likely than not be tortured; it does not

require a nexus to any protected ground.            Id. §§ 1208.16(c),

1208.17.     The CAT’s implementing regulations define torture as

pain and suffering “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.”         Id. § 1208.18(a)(1).

Acquiescence, in turn, “requires that the public official,

prior to the activity constituting torture, have awareness of

such    activity   and   thereafter   breach    his    or   her   legal

responsibility to intervene to prevent such activity.”              Id.

§ 1208.18(a)(7).

       Sanchez was convicted of conspiracy to distribute heroin

in 2008, and she was ordered removed as an alien who had been

convicted of an aggravated felony, a conspiracy to commit an

aggravated felony, and a crime relating to a controlled

substance.     Her conviction constrains our jurisdiction to

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

§§ 1252(a)(2)(C), (D); see Ortiz-Franco v. Holder, 782 F.3d 81,

86 (2d Cir. 2015).    When assessing jurisdiction, we must “study

the arguments asserted” to “determine, regardless of the

rhetoric employed in the petition, whether it merely quarrels

over the correctness of the factual findings” or raises a true
                               3
question of law.     Xiao Ji Chen v. U.S. Dep’t of Justice, 471

F.3d 315, 329 (2d Cir. 2006); see also Mendez v. Holder, 566

F.3d 316, 323 (2d Cir. 2009) (identifying error of law where

“important” facts had been “totally overlooked and others ha[d]

been seriously mischaracterized”).

    In the main, Sanchez argues that the agency committed legal

error by failing to address whether the government of the

Dominican Republic will be willfully blind to her torture.

This is a factual challenge cloaked as a legal question, which

we lack jurisdiction to review.    The IJ and BIA both rejected

Sanchez’s theory of willful blindness.      The IJ acknowledged

that governmental involvement can be shown by an official’s

willful blindness to torture, but found that Sanchez failed to

make that showing.    See Khouzam v. Ashcroft, 361 F.3d 161, 171

(2d Cir. 2004).    The BIA rejected as unpersuasive Sanchez’s

claim that her ex-boyfriend, against whom she cooperated in her

criminal case, is working with Dominican officials who would

acquiesce or show willful blindness to his revenge.

    A prior panel ordered the parties to brief the purely legal,

subsidiary question whether the Dominican government’s general

ineffectiveness in preventing crime suggests that it is likely

to acquiesce to Sanchez’s torture absent evidence of corruption

or other specific inability or unwillingness to stop Sanchez’s
                               4
ex-boyfriend.       The Government argues that Sanchez failed to

administratively exhaust this issue.            Not so.

       We “may review a final order of removal only if . . . the

alien has exhausted all administrative remedies available to

the alien as of right.”           8 U.S.C. § 1252(d)(1).         Although

Sanchez’s brief to the BIA made only a fleeting reference to

CAT relief, she argued government acquiescence in the context

of asylum and withholding, and the BIA reviewed the IJ’s denial

of CAT relief.        That put Sanchez’s CAT claim before us.           See

Waldron v. INS, 17 F.3d 511, 515 n.7 (2d Cir. 1993) (“[T]he BIA

addressed     the   issue    in   that   appeal,    apparently   excusing

Waldron’s failure to raise the issue previously.            Accordingly,

we also may consider the issue.”).                 As to the particular

argument, the INA “bars the consideration of bases for relief

that were not raised below, and of general issues that were not

raised below, but not of specific, subsidiary legal arguments,

or arguments by extension, that were not made below.”             Gill v.

INS,    420    F.3d    82,   86    (2d   Cir.   2005)     (discussing    8

U.S.C. § 1252(d)(1)).         Put another way, we do not “require

complete conformity between an alien’s argument below and on

appeal.”      Id. at 86-87.       We therefore have jurisdiction to

consider the “subsidiary legal argument” identified in our

prior order.
                                     5
      Although we have jurisdiction to review the argument,

Sanchez addresses it only in passing, writing that “a government

can indicate its intent to allow this type of private torture

by citizens through its inaction, even where laws criminalizing

this type of violence exist.”       Pet’r’s Br. 17.   She cites

background evidence on the Dominican government in the context

of willful blindness, saying that it demonstrates “a pattern

and practice of cooperating and assisting criminals.”     Id. at

15.

      Under the BIA’s CAT jurisprudence, which we have approved,

that is not enough.   As the Attorney General has explained, “It

is the likelihood of all necessary events coming together that

must more likely than not lead to torture, and a chain of events

cannot be more likely than its least likely link.”         In re

J-F-F-, 23 I. & N. Dec. 912, 918 n.4 (AG 2006); see also Savchuck

v. Mukasey, 518 F.3d 119, 124 (2d Cir. 2008) (approving agency’s

application of J-F-F- to find CAT claim speculative).    Sanchez

identifies a possible event: the Dominican government will fail

to protect her from her ex-boyfriend.     But she draws no link

between the Dominican government’s general failure to protect

others and the facts in her case.   Other courts of appeals have

rejected similar claims, even those paired with evidence that

the government previously failed to protect the individual
                             6
applicant.    See, e.g., Garcia-Milian v. Holder, 755 F.3d 1026,

1034-35 (9th Cir. 2013); Tamara-Gomez v. Gonzales, 447 F.3d 343,

351-52 (5th Cir. 2006); Reyes-Sanchez v. U.S. Att’y Gen., 369

F.3d 1239, 1241-43 (11th Cir. 2004).   Sanchez’s claim rests on

a chain of assumptions that the agency was not obligated to

adopt.    Savchuck, 518 F.3d at 124.

    For the foregoing reasons, the petition for review is

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

that the Court previously granted in this petition is VACATED.

                              FOR THE COURT:
                              Catherine O=Hagan Wolfe, Clerk




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