         11-3909
         Padilla v. Holder
                                                                                       BIA
                                                                                 Abrams, IJ
                                                                               A073 656 250
                              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 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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 20th day of May, two thousand thirteen.
 5
 6       PRESENT:
 7                REENA RAGGI,
 8                DENNY CHIN,
 9                RAYMOND J. LOHIER, JR.,
10                     Circuit Judges.
11       _____________________________________
12
13       JORGE A. PADILLA, AKA
14       JOSE ALBERTO PADILLA,
15                Petitioner,
16
17                           v.                                 11-3909
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _____________________________________
23
24       FOR PETITIONER:               Judy Resnick, Far Rockaway, New
25                                     York.
26
27       FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
28                                     Attorney General; Mary Jane Candaux,
29                                     Assistant Director; Matthew A.
30                                     Connelly, Trial Attorney, United
 1                          States Department of Justice, Office
 2                          of Immigration Litigation,
 3                          Washington, D.C.
 4
 5       UPON DUE CONSIDERATION of this petition for review of a

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

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

 8   is DENIED.

 9       Jorge A. Padilla, a native and citizen of El Salvador,

10   seeks review of a September 7, 2011, order of the BIA

11   reversing the September 14, 2009, decision of Immigration

12   Judge (“IJ”) Steven R. Abrams, and denying his application

13   for withholding of removal and relief under the Convention

14   Against Torture (“CAT”).   In re Jorge A. Padilla, No. A073

15   656 250 (B.I.A. Sept. 7, 2011), rev’g No. A073 656 250

16   (Immig. Ct. N.Y. City Sept 14, 2009).   We assume the

17   parties’ familiarity with the underlying facts and

18   procedural history in this case.

19       Title 8, Section 1252(a)(2)(C) of the United States

20   Code provides that no court shall have jurisdiction to

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

22   Padilla, who was convicted of a controlled substance offense

23   or a crime involving moral turpitude.   Notwithstanding that

24   provision, we retain jurisdiction to review constitutional



                                   2
 1   claims and “questions of law.”       8 U.S.C. § 1252(a)(2)(D).

 2   Under the circumstances of this case, we have reviewed only

 3   the decision of the BIA.      See Yan Chen v. Gonzales, 417 F.3d

 4   268, 271 (2d Cir. 2005).

 5   I.   Withholding of Removal

 6        Under 8 U.S.C. § 1231(b)(3)(B)(ii), withholding of

 7   removal cannot be granted to an alien who, “having been

 8   convicted by a final judgment of a particularly serious

 9   crime[,] is a danger to the community of the United States.”

10   The Attorney General in Matter of Y-L-, A-G-, and R-S-R-,

11   noting that the courts and the BIA have long recognized that

12   drug trafficking felonies constitute “particularly serious

13   crimes,” concluded that “[o]nly under the most extenuating

14   circumstances that are both extraordinary and compelling

15   would departure from this interpretation be warranted or

16   permissible.”    23 I. & N. Dec. 270, 274 (BIA Mar.5, 2002),

17   overruled, in part, on other grounds, by Khouzam v.

18   Ashcroft, 361 F.3d 161, 171 (2d Cir. 2004).       The Attorney

19   General then identified six threshold requirements that an

20   alien must demonstrate to show “extraordinary and compelling

21   circumstances that justify treating a particular drug

22   trafficking crime as falling short” of a particularly

23   serious crime.    Id. at 276-77 (listing requirements).

                                      3
 1       Padilla does not argue that these six requirements do

 2   not apply to his case, and as the BIA noted, there is no

 3   evidence in the record showing that Padilla met these

 4   requirements.   Rather, Padilla advances the more limited

 5   argument that, in violation of his due process rights, he

 6   “was never given the opportunity to present rebuttal

 7   evidence,” and that instead of reversing the IJ’s decision,

 8   the BIA should have remanded the case to the IJ for a new

 9   hearing.   Padilla’s argument is without merit, as he had an

10   opportunity to present evidence to the IJ to rebut the

11   presumption that a drug trafficking conviction is a

12   particularly serious crime, and an opportunity to reply to

13   the government’s argument before the BIA that his conviction

14   was a particularly serious crime.   The BIA properly engaged

15   in a de novo review to determine that the evidence Padilla

16   presented did not rebut the presumption that his conviction

17   was a particularly serious crime that rendered him

18   statutorily ineligible for withholding of removal.     See

19   8 U.S.C. § 1231(b)(3)(B)(ii); 8 C.F.R. § 1003.1(d)(3)(ii);

20   Matter of Y-L-, 23 I. & N. Dec. at 276-77.

21

22



                                   4
 1   II.   CAT relief

 2         Padilla has waived any challenge to the substantive

 3   basis of the BIA’s denial of deferral of removal pursuant to

 4   the CAT.   See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541

 5   n.1, 545 n.7 (2d Cir. 2005).   Instead, Padilla argues that

 6   the BIA erred, and deprived him of his due process rights,

 7   by reviewing his CAT application in the first instance,

 8   rather than remanding to the IJ for consideration of that

 9   application.   This argument presents a constitutional claim,

10   which we retain jurisdiction to review.    See Saloum v.

11   USCIS, 437 F.3d 238, 243 (2d Cir. 2006).

12         In immigration proceedings, due process requires that,

13   at a minimum, an alien “must be afforded the opportunity to

14   be heard at a meaningful time and in a meaningful manner.”

15   Burger v. Gonzales, 498 F.3d 131, 134 (2d Cir. 2007)

16   (internal quotation marks omitted).   “Parties claiming

17   denial of due process in immigration cases must, in order to

18   prevail, allege some cognizable prejudice fairly

19   attributable to the challenged process.”    Garcia-Villeda v.

20   Mukasey, 531 F.3d 141, 149 (2d Cir. 2008)(internal quotation

21   marks omitted).

22         Padilla applied for CAT relief before the IJ, and had

23   an opportunity during his merits hearing to present evidence
                                    5
 1   in support of his claims for both withholding of removal and

 2   CAT relief.    While the IJ did not make a decision regarding

 3   Padilla’s CAT application, the BIA was able to review the

 4   record established during Padilla’s merits hearing to

 5   determine whether Padilla had demonstrated that he would be

 6   tortured if he returned to El Salvador.    The BIA concluded

 7   that Padilla had not established his CAT eligibility

 8   because: (1) he had not shown that it was more likely than

 9   not he would be tortured if he returned to El Salvador; and

10   (2) he had not shown that any torture would occur with the

11   consent or acquiescence of the Salvadoran government.

12       The BIA reviews findings of fact under the “clearly

13   erroneous” standard, and all other issues “de novo.”

14   8 C.F.R. § 1003.1(d)(3)(i), (ii).    The BIA’s conclusions

15   that whatever mistreatment Padilla might suffer would not

16   rise to the level of torture, and that Padilla had not shown

17   such mistreatment would occur with the consent or

18   acquiescence of the El Salvadoran government, are both legal

19   conclusions.    See Hui Lin Huang v. Holder, 677 F.3d 130,

20   134-35 (2d Cir. 2012); De La Rosa v. Holder, 598 F.3d 103,

21   110 (2d Cir. 2010).    Because Padilla had a full and fair

22   opportunity to present his CAT claim before the IJ, and

23   because the BIA reviewed the record evidence to determine
                                    6
 1   that as a matter of law, Padilla had not met his burden of

 2   showing eligibility for CAT relief, Padilla’s due process

 3   rights were not violated.   See id.; Burger, 498 F.3d at 134.

 4   Moreover, despite the BIA’s possible error in reviewing de

 5   novo the IJ’s conclusion that Padilla would suffer

 6   mistreatment in El Salvador, see Hui Lin Huang, 677 F.3d at

 7   134, the two correct grounds upon which the BIA based its

 8   decision are sufficient to support its ruling on Padilla’s

 9   CAT claim.   See Cao He Lin v. U.S. Dep’t of Justice, 428

10   F.3d 391, 401 (2d Cir. 2005).

11       For the foregoing reasons, the petition for review is

12   DENIED.   As we have completed our review, the pending motion

13   for a stay of removal in this petition is DENIED as moot.

14   Any pending request for oral argument in this petition is

15   DENIED in accordance with Federal Rule of Appellate

16   Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

17                               FOR THE COURT:
18                               Catherine O’Hagan Wolfe, Clerk




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