         10-4211-ag
         Campbell v. Holder
                                                                                       BIA
                                                                                    Reid, IJ
                                                                               A041 462 879
                               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
 4       New York, on the 4th day of May, two thousand twelve.
 5
 6       PRESENT:
 7                PETER W. HALL,
 8                GERARD E. LYNCH,
 9                DENNY CHIN,
10                     Circuit Judges.
11       _______________________________________
12
13       RICARDO ANTHONY CAMPBELL, AKA
14       RICHARD SILVERA,
15                Petitioner,
16
17                            v.                                10-4211-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _______________________________________
23
24       FOR PETITIONER:                Christopher M. Egleson, Katherine P.
25                                      Scully, Akin Gump Strauss Hauer &
26                                      Feld LLP, New York, New York.
27
28       FOR RESPONDENT:                Tony West, Assistant Attorney
29                                      General; Francis W. Fraser, Senior
 1                          Litigation Counsel; Marion E.
 2                          Guyton, Trial Attorney, Office of
 3                          Immigration Litigation, United
 4                          States Department of Justice,
 5                          Washington, D.C.
 6
 7                          Steven Banks, Attorney-in-Chief
 8                          The Legal Aid Society, New York,
 9                          NY, for amicus curiae The Legal
10                          Aid Society.
11
12
13        UPON DUE CONSIDERATION of this petition for review of a
14   decision of the Board of Immigration Appeals (“BIA”), it is
15   hereby ORDERED, ADJUDGED, AND DECREED that the petition for
16   review is DENIED in part and DISMISSED in part.
17
18        Ricardo Anthony Campbell, a native and citizen of
19   Jamaica, seeks review of a September 30, 2010, decision of
20   the BIA affirming the January 11, 2010, decision of
21   immigration judge (“IJ”) John B. Reid, denying his
22   application for asylum, withholding of removal, and relief
23   under the Convention Against Torture (“CAT”). In re Ricardo
24   Anthony Campbell, No. A041 462 879 (B.I.A. Sept. 30, 2010),
25   aff’g No. A041 462 879 (Immig. Ct. Batavia Jan. 11, 2010).
26   We assume the parties’ familiarity with the underlying facts
27   and procedural history of this case.
28
29        Because Campbell is removable by reason of having been
30   convicted of an aggravated felony, we lack jurisdiction to
31   review the agency’s factual findings and discretionary
32   determinations. See 8 U.S.C. § 1252(a)(2)(C). However, we
33   retain jurisdiction to review constitutional claims or
34   questions of law. See 8 U.S.C. § 1252(a)(2)(D). In order
35   to ascertain whether Campbell raises constitutional
36   challenges or questions of law over which we have
37   jurisdiction, we study the arguments asserted and
38   “determine, regardless of the rhetoric employed in the
39   petition, whether [they] merely quarrel[] over the
40   correctness of the factual findings or justification for the
41   discretionary choices, in which case [we] would lack
42   jurisdiction.” Xiao Ji Chen v. U.S. Dep’t of Justice, 471
43   F.3d 315, 329 (2d Cir. 2006). Similarly, we “lack
44   jurisdiction to review any legal argument that is so

                                  2
 1   insubstantial and frivolous as to be inadequate to invoke
 2   federal-question jurisdiction.” Barco-Sandoval v. Gonzales,
 3   516 F.3d 35, 40 (2d Cir. 2008). We review constitutional
 4   claims and questions of law de novo. See Pierre v. Holder,
 5   588 F.3d 767, 772 (2d Cir. 2009). Because Campbell does not
 6   challenge his removability or the agency’s determination
 7   that he was not statutorily eligible for asylum, our review
 8   is limited to the agency’s denial of withholding of removal
 9   and CAT relief.
10
11        Campbell first argues that the IJ applied an overly
12   strict burden of persuasion by requiring him to demonstrate
13   a likelihood of persecution and torture by clear and
14   convincing evidence, as opposed to by a preponderance of the
15   evidence. Although Campbell’s argument states a question of
16   law over which we have jurisdiction, see Khan v. Gonzales,
17   495 F.3d 31, 35 (2d Cir. 2007), his contention is without
18   merit.
19
20        An alien bears the burden of proving by a preponderance
21   of the evidence his eligibility for asylum and related
22   relief. See Borovikova v. U.S. Dep’t of Justice, 435 F.3d
23   151, 155-56 (2d Cir. 2006); see also In re Acosta, 19 I. &
24   N. Dec. 211, 215-16 (BIA 1985), overruled on other grounds
25   by In re Mogharrabi, 19 I. & N. Dec. 439, 441 (BIA 1987).
26   In Campbell’s proceedings, the IJ did not explicitly state
27   what burden of persuasion he was applying to Campbell’s
28   application for relief, and Campbell does not point to
29   language at the merits hearing or in the decision denying
30   relief to support his contention that the IJ incorrectly
31   applied the clear and convincing standard. Instead,
32   Campbell relies entirely on the IJ’s statements at a master
33   calendar hearing. At that time the IJ was attempting to
34   explain to Campbell, who then was proceeding pro se, what he
35   would need to demonstrate in order to qualify for
36   withholding of removal or CAT relief. The IJ informed
37   Campbell that he would have to “convince” the immigration
38   court that he would more likely than not be persecuted or
39   tortured if removed to Jamaica. Campbell contends that the
40   IJ’s use of the word “convince” at his master calendar
41   hearing demonstrated that the IJ erroneously applied “a
42   ‘clear and convincing’ standard or something like it.”
43
44


                                  3
 1        We have stated that “in the ordinary civil suit,
 2   usually a judge commits reversible error if he instructs the
 3   jury that the plaintiff cannot recover unless he ‘convinces’
 4   them (or the like) [because s]uch a charge . . . indicates
 5   something midway between a preponderance’ and ‘beyond a
 6   reasonable doubt,’ and should therefore be reserved for
 7   certain exceptional sorts of civil cases where more than a
 8   ‘preponderance’ is required.” Larson v. Jo Ann Cab Corp.,
 9   209 F.2d 929, 930-31 (2d Cir. 1954); see also Ostrowski v.
10   Atl. Mut. Ins. Cos., 968 F.2d 171, 187 (2d Cir. 1992).
11   Nevertheless, we have declined to reverse a judgment
12   notwithstanding the repeated use of the word “conviction” in
13   the jury charge when the charge as a whole left “no room for
14   a just inference that the verdict was legally defective.”
15   Larson, 209 F.2d at 935. In this case, unlike the situation
16   discussed in Larson, in using the word “convince,” the IJ
17   was not instructing the fact-finder as to Campbell’s burden
18   of persuasion. The IJ was simply trying to explain to
19   Campbell, who had the burden of proof, that he would have to
20   persuade the IJ as fact-finder that he would more likely
21   than not be persecuted or tortured if removed to Jamaica.
22   See id. at 931-35. There is absolutely no indication that
23   the IJ, as fact-finder, applied anything other than the
24   preponderance of the evidence standard in considering the
25   evidence presented at Campbell’s merits hearing or in
26   reaching his ultimate decision on the merits. The IJ’s use
27   of the word “convince” during a master calendar hearing to
28   describe for a pro se petitioner the task that he was about
29   to undertake does not demonstrate legal error requiring
30   remand. As there was no legal error in this respect, that
31   portion of the petition for review advancing this argument
32   is denied.
33
34        Campbell also argues that the IJ committed an error of
35   law by ignoring material evidence that he would more likely
36   than not be persecuted and tortured in Jamaica. We have
37   rejected the notion that the agency must “expressly parse or
38   refute on the record each individual argument or piece of
39   evidence offered by the petitioner,” Jian Hui Shao v.
40   Mukasey, 546 F.3d 138, 169 (2d Cir. 2008)(internal quotation
41   marks omitted), and we presume that the agency “has taken
42   into account all of the evidence before [it], unless the
43   record compellingly suggests otherwise,” Xiao Ji Chen, 471
44   F.3d at 337 n.17. We have further recognized “that the
45   agency does not commit an ‘error of law’ every time an item

                                  4
 1   of evidence is not explicitly considered or is described
 2   with imperfect accuracy.” Mendez v. Holder, 566 F.3d 316,
 3   323 (2d Cir. 2009).
 4
 5        Campbell contends that the IJ erred by relying on the
 6   fact that he was able to remain unharmed in Syracuse, New
 7   York, for years after being exposed as a police informant
 8   against Jamaican gang members, while ignoring the facts that
 9   Jamaican gangs no longer operated in Syracuse and that
10   Campbell had police protection in that city. Campbell’s
11   argument, however, challenges the IJ’s factual findings,
12   which we lack jurisdiction to review. See Xiao Ji Chen, 471
13   F.3d at 329. Similarly, Campbell’s arguments that the IJ
14   ignored other evidence, including evidence that some members
15   of a politically connected Jamaican gang had been deported
16   to Jamaica and that he had received direct threats
17   demonstrating a likelihood that he would be persecuted and
18   tortured in Jamaica, are also nothing more than to the IJ’s
19   evaluation of the facts, which we also lack jurisdiction to
20   review. The same is true with respect to Campbell’s
21   arguments regarding shots being fired at a house in
22   Syracuse.
23
24        Ultimately, Campbell’s arguments that the IJ erred as a
25   matter of law by failing to consider material evidence in
26   the record regarding his ability to remain unharmed in the
27   United States and the threats that he received amount only
28   to a challenge to the correctness of the IJ’s factual
29   finding—a challenge that we lack jurisdiction to review.
30   That portion of the petition for review raising these
31   challenges is therefore dismissed.
32
33        Campbell also argues that the BIA’s decision is
34   incomprehensible and flawed such that remand is required.
35   Specifically, Campbell contends that: (1) the BIA’s citation
36   to the Attorney General’s decision in Matter of J-F-F-, 23
37   I. & N. Dec. 912, 915-17 (A.G. 2006), was “confusing” and
38   “bizarre”; (2) the BIA’s statements regarding his argument
39   that the IJ ignored an Amnesty International report in the
40   record were non-responsive; (3) the BIA’s discussion of the
41   Amnesty International report was erroneous; and (4) the BIA
42   failed to explain adequately its conclusion that Campbell
43   did not demonstrate that the Jamaican government would be
44   willfully blind to his torture. While the BIA’s failure to
45   explain a decision rationally may constitute an error of
                                  5
 1   law, see Sheng Gao Ni v. BIA, 520 F.3d 125, 127 (2d Cir.
 2   2008), no such error exists here. We have reviewed each of
 3   these challenges and find them to be without merit. To the
 4   extent the petition seeks to advance these challenges, the
 5   petition for review is denied.
 6
 7        Finally, Campbell raises no colorable legal challenge
 8   to the agency’s determination that he failed to establish a
 9   likelihood of persecution. Because that determination
10   provided an adequate basis for the agency’s denial of
11   withholding of removal, we need not, and thus do not,
12   address Campbell’s challenge to the agency’s alternative
13   basis for denying him that form of relief, namely its
14   conclusion that he failed to demonstrate that his proposed
15   social group had the requisite social visibility to be
16   recognized as such. See 8 C.F.R. § 1208.16(b)(1).
17
18        The Legal Aid Society’s motion to submit an amicus
19   curiae brief is GRANTED, see Fed. R. App. P. 29, 32;
20   although we have fully considered the arguments set forth
21   therein, as discussed above, we find no legal error in the
22   agency’s decision.
23
24        For the foregoing reasons, the petition for review is
25   DENIED in part and DISMISSED in part. As we have completed
26   our review, Campbell’s pending motion for a stay of removal
27   in this petition is DENIED as moot. Any pending request for
28   oral argument in this petition is DENIED in accordance with
29   Federal Rule of Appellate Procedure 34(a)(2), and Second
30   Circuit Local Rule 34.1(b).
31
                                FOR THE COURT:
                                Catherine O’Hagan Wolfe, Clerk




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