    15-122
    Stephenson v. Lynch
                                                                                        BIA
                                                                                   Straus, IJ
                                                                               A075 199 250
                           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 24th day
    of February, two thousand sixteen.

    PRESENT:
              PIERRE N. LEVAL,
              DEBRA ANN LIVINGSTON,
              SUSAN L. CARNEY,
                   Circuit Judges.
    _____________________________________

    JOSEPH ANTHONY STEPHENSON, AKA
    JOSEPH ANTHONY BUDDOO,

                            Petitioner,

                      v.                                             15-122

    LORETTA E. LYNCH, UNITED STATES
    ATTORNEY GENERAL,

                   Respondent.
    _____________________________________

    FOR PETITIONER:                       JUSTIN CONLON, Hartford, Connecticut.

    FOR RESPONDENT:                   YANAL H. YOUSEF, Trial Attorney; Benjamin
                                      C. Mizer, Principal Deputy Assistant
                                      Attorney General; Ernesto H. Molina, Jr.,
                                      Assistant Director, Office of Immigration
                                      Litigation, United States 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 DENIED in part

and DISMISSED in part.

        Petitioner Joseph Anthony Stephenson, a native and citizen of

Jamaica, seeks review of a December 15, 2014, decision of the BIA

affirming the July 22, 2014, decision of an Immigration Judge (“IJ”)

denying Stephenson deferral of removal under the Convention Against

Torture (“CAT”) and ordering him removed.        In re Joseph Anthony

Stephenson, No. A075 199 250 (B.I.A. Dec. 15, 2014), aff’g No. A075

199 250 (Immig. Ct. Hartford July 22, 2014).    We assume the parties’

familiarity with the underlying facts and procedural history in this

case.

        Under the circumstances of this case, we have reviewed the IJ’s

decision as modified by the BIA, i.e., minus the basis for denying

relief that the BIA did not consider (the IJ’s finding that Stephenson

was removable for having been convicted of two crimes involving moral

turpitude).     See Xue Hong Yang v. Dep’t of Justice, 426 F.3d 520,

522 (2d Cir. 2005).      Although we generally lack jurisdiction to

review a final order of removal against an alien, such as Stephenson,

who is removable by reason of having committed an aggravated felony,

see 8 U.S.C. § 1252(a)(2)(C); Ortiz-Franco v. Holder, 782 F.3d 81,


                                    2
86 (2d Cir. 2015), we retain jurisdiction to review constitutional

claims and questions of law, which we review de novo, see 8 U.S.C.

§ 1252(a)(2)(D); Pierre v. Holder, 588 F.3d 767, 772 (2d Cir. 2009).

Preclusion

      Stephenson’s argument that the doctrines of res judicata and

collateral estoppel precluded the Department of Homeland Security

(“DHS”) from lodging charges of removability against him based on

his 2009 robbery conviction raises a question of law that we have

jurisdiction to review.    See Channer v. Dep’t of Homeland Sec., 527

F.3d 275, 279 (2d Cir. 2008).    His argument, however, is foreclosed

by   Channer.   The   Government   may   institute     a   second    removal

proceeding to charge an alien as removable for an aggravated felony

conviction when the second charge is based on a different conviction

for a distinct criminal offense than the conviction underlying the

first charge.   This rule applies irrespective of whether the charge

could have been raised in an earlier proceeding.           Id. at 281-82.

      In Stephenson’s first proceeding, DHS did not charge him as

removable on account of his 2009 robbery conviction (relying solely

on his 2004 and 2007 larceny convictions).            And, in that first

proceeding, the IJ declined to consider whether Stephenson’s robbery

conviction   constituted   an   aggravated   felony    barring      him   from

cancellation of removal.    Therefore, because DHS had not previously


                                   3
charged Stephenson as removable based on his robbery conviction, and

the IJ had never decided whether that conviction constituted an

aggravated felony, DHS was not precluded from initiating a second

removal proceeding based on that conviction, nor was the IJ barred

from deciding the issue.   See id.       The petition for review is denied

to this extent.

Deferral of Removal

     Stephenson argues that, given the IJ’s determination that he

is likely to be detained upon removal to Jamaica, the IJ erred as

a matter of law in concluding that he failed to demonstrate a

likelihood of torture or a likelihood that Jamaican officials would

torture or acquiesce to his torture with the requisite specific

intent.   He relies on country conditions evidence discussing

unlawful killings by police, gang violence, societal stigmas against

the mentally ill, and instances of abuse against prisoners (both

mentally ill and healthy).     Stephenson’s challenge to the IJ’s

evaluation of the country conditions evidence and determination as

to the likelihood of events in Jamaica upon his return is a challenge

to the IJ’s factual findings, which we lack jurisdiction to review.

See Pierre v. Gonzales, 502 F.3d 109, 121 (2d Cir. 2007); see also

Hui Lin Huang v. Holder, 677 F.3d 130, 134-35 (2d Cir. 2012).          We




                                     4
dismiss the petition for review to this extent.    See Ortiz-Franco,

782 F.3d at 91.

     For the foregoing reasons, the petition for review is DENIED

in part and DISMISSED in part.

                                 FOR THE COURT:
                                 Catherine O=Hagan Wolfe, Clerk




                                  5
