                                                            NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                    No. 11-1877
                                    ___________

                            JUAN LORENZO PAULINO,
                                             Petitioner

                                          v.

                ATTORNEY GENERAL OF THE UNITED STATES,
                                             Respondent
                   ____________________________________

                      On Petition for Review of an Order of the
                           Board of Immigration Appeals
                                   (A043-328-948)
                    Immigration Judge: Honorable Jesus Clemente
                     ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                September 15, 2011

      Before: FUENTES, GREENAWAY, JR., and GREENBERG, Circuit Judges

                         (Opinion filed: September 23, 2011)
                                    ___________

                                     OPINION
                                    ___________

PER CURIAM.

      Juan Lorenzo Paulino, a native and citizen of the Dominican Republic, petitions

for review of the Board of Immigration Appeals’ (“BIA”) final removal order denying his

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application for deferral of removal under the Convention Against Torture (“CAT”). We

will deny the petition for review.

                                            I.

       Paulino, presently age forty-one, was admitted to the United States in 1992 as a

lawful permanent resident. In 2002, he was convicted in New York State of second-

degree criminal sale of a controlled substance and sentenced to fifty-four months in

prison. Paulino absconded from a work release program in 2004. In 2009, he was

convicted in the United States District Court for the District of New Jersey of conspiracy

to distribute five or more kilograms of cocaine and sentenced to eighty-four months in

prison. The Department of Homeland Security issued a notice to appear charging

removability for an aggravated felony conviction (8 U.S.C. § 1227(a)(2)(A)(iii)), a

controlled substance offense (8 U.S.C. § 1227(a)(2)(B)(i)), and two crimes involving

moral turpitude (8 U.S.C. § 1227(a)(2)(A)(ii)).

       Proceeding pro se before the Immigration Judge (“IJ”), Paulino conceded his

removability on the grounds charged, and he sought a deferral of removal under the CAT

based on his alleged fear of returning to the Dominican Republic. Paulino testified that

certain members of his family had received warnings and threats that Paulino would be

killed in the Dominican Republic because he had provided information to the prosecution

regarding four members of his federal drug conspiracy. While Paulino does not claim to

fear those four co-conspirators, he does claim to fear Estalin Perez, an individual who had

supplied cocaine to Paulino, and for which Paulino had never made payment. Paulino
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contends that Perez has threatened to kill him for the lost cocaine as well as for

cooperating with the government. Paulino alleges that Perez lives in the Dominican

Republic and has become a police officer so that he can kill Paulino when he returns.

       The IJ denied CAT relief, rejecting the credibility of Paulino’s testimony and

finding no basis in the evidence to afford relief. The BIA dismissed Paulino’s appeal.

Assuming the credibility of Paulino’s testimony, the BIA held that Paulino failed to

sustain his burden of proof for deferral of removal under the CAT. In particular, the BIA

found that Paulino had not shown that it is more likely than not that he would be tortured

at the instigation or with the acquiescence of a public official. In addition, the BIA found

the evidence insufficient to demonstrate that Perez, in fact, is a police officer in the

Dominican Republic, as neither Paulino nor his family members have actually seen Perez

in the Dominican Republic, and Paulino presented no firsthand evidence that Perez had

joined the police. Consequently, the BIA concluded, any action perpetrated by Perez

would be retribution for a personal dispute, which falls short of the government

sanctioned torture required under the CAT. Finally, the BIA explained that the evidence

does not indicate that the Dominican Republic’s government would approve of, or be

willfully blind to, atrocities committed against individuals who, like Paulino, engage in

the illegal drug trade and expose themselves to the risk of violence. Paulino timely filed

a petition for review in this Court.

                                              II.

       Our jurisdiction over a petition for review is limited when a criminal alien, like
                                               3
Paulino, is removable for an aggravated felony conviction. See 8 U.S.C. § 1252(a)(2)(C).

In such cases, our jurisdiction extends only to constitutional claims and questions of law.

See 8 U.S.C. § 1252(a)(2)(D); Papageorgiou v. Gonzales, 413 F.3d 356, 358 (3d Cir.

2005).

         Paulino challenges the denial of his application for deferral of removal under the

CAT. He first argues that the BIA erred by failing to apply the correct law when

considering the cooperation that he provided in his federal prosecution. In particular,

Paulino argues that he is entitled to “witness protection” under INA § 236(c)(2), 8 U.S.C.

§ 1226(c)(2), which provides in part that “[t]he Attorney General may release an alien

described in [§ 236(c)(1)] only if the Attorney General decides … that release of the alien

from custody is necessary to provide protection to a witness ….”

         We agree with respondent that this issue raises a reviewable “question of law”

under § 1252(a)(2)(D), but the issue is plainly without merit. INA § 236(c) governs the

detention of criminal aliens and the circumstances under which the Attorney General may

release such aliens from custody. Section 236(c) has no connection to Paulino’s

eligibility for CAT protection, and the BIA did not err in failing to consider that statute.

In addition, to the extent Paulino suggests that the United States has a duty to protect him

because it placed him in danger that he would not otherwise have faced by seeking his

cooperation in a drug prosecution, this Court has rejected the “state-created danger”

argument as a basis for seeking relief from removal. See Rranci v. Att’y Gen., 540 F.3d

165, 171 (3d Cir. 2008); Kamara v. Att’y Gen., 420 F.3d 202, 217-18 (3d Cir. 2005)
                                               4
(“Extending the state-created danger exception to final orders of removal would

impermissibly tread upon the Congress’ virtually exclusive domain over immigration,

and would unduly expand the contours of our immigration statutes and regulations,

including the regulations implementing the CAT.”).

       The remaining arguments in Paulino’s pro se appellate brief can be construed as

suggesting that the BIA erred in its application of the law governing CAT protection to

the undisputed facts of record. 1 We retain jurisdiction to review this issue, see Toussaint

v. Gonzales, 455 F.3d 409, 412 n.3 (3d Cir. 2006), and inquire whether Paulino “has

identified … evidence to compel the conclusion that it is more likely than not that he will

be tortured upon return to [the Dominican Republic].” De Leon-Ochoa v. Att’y Gen.,

622 F.3d 341, 357 (3d Cir. 2010). Such torture must be “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.” 8 C.F.R. § 1208.18(a)(1).

       Paulino claims to fear retribution from his drug supplier, Perez, for failing to pay

for drugs and for having cooperated with the government in connection with his criminal

prosecution. The record reflects, however, that Paulino did not provide evidence to the

government about Perez himself. Furthermore, the undisputed facts do not establish that

Perez currently lives in the Dominican Republic or is a member of the police force in that

country, as Paulino asserts. Moreover, the evidence does not show that any public

   1
     Insofar as Paulino seeks to challenge the IJ’s adverse credibility determination, that
   issue is not properly before this Court. Like the BIA, we can and will assume the
   credibility of Paulino’s testimony for purposes of our analysis.
                                             5
official in the Dominican Republic would consent or acquiesce to the mistreatment of

Paulino. The record, therefore, does not compel the conclusion that Paulino is entitled to

deferral of removal under the CAT.

      Finally, to the extent that Paulino takes issue with the BIA’s resolution of factual

issues (such as whether Perez lives in the Dominican Republic or is a police officer

there), and its weighing of the evidence presented, we agree with respondent that we lack

jurisdiction to review those issues. See Jarbough v. Att’y Gen., 483 F.3d 184, 189 (3d

Cir. 2007) (recognizing that “arguments such as that an [IJ] or the BIA incorrectly

weighed evidence, failed to consider evidence or improperly weighed equitable factors

are not questions of law under § 1252(a)(2)(D)”).

                                           III.

      For the reasons stated, we will deny the petition for review.




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