         09-4739-ag
         Grajales v. Holder
                                                                                       BIA
                                                                               A012 870 832
                               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 29 th day of October, two thousand ten.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                     Chief Judge,
 9                ROBERT D. SACK,
10                RICHARD C. WESLEY,
11                     Circuit Judges.
12       _____________________________________
13
14       Maria Aurora Rocha Grajales, also
15       known as Maria La Torre,
16                Petitioner,
17
18                            v.                                09-4739-ag
19                                                              NAC
20       ERIC H. HOLDER, JR., UNITED STATES
21       ATTORNEY GENERAL,
22                Respondent.
23       _____________________________________
24
25       FOR PETITIONER:                H. Raymond Fasano, New York, New
26                                      York
27
28       FOR RESPONDENT:                Tony West, Assistant Attorney
29                                      General; Mark C. Walters, Senior
30                                      Litigation Counsel, Glen T. Jaeger,
1                           Trial Attorney, Office of
2                           Immigration Litigation, Civil
3                           Division, United States Department
4                           of Justice, Washington, D.C.
5
6        UPON DUE CONSIDERATION of this petition for review of a

7    decision of the Board of Immigration Appeals (“BIA”), it is

8    hereby ORDERED, ADJUDGED, AND DECREED, that the petition for

9    review is DENIED in part and DISMISSED in part.

10       Maria Aurora Rocha Grajales, a native and citizen of

11   Colombia, seeks review of a November 9, 2009, order of the

12   BIA denying her motion to reopen. In re Maria Aurora Rocha

13   Grajales, No. A012 870 832 (B.I.A. Nov. 9, 2009).     We assume

14   the parties’ familiarity with the underlying facts and

15   procedural history of this case.

16       We lack jurisdiction to review a final order of removal

17   where, as here, the order results from convictions of two or

18   more crimes involving moral turpitude, unless the petition

19   raises “constitutional claims or questions of law.”     See

20   8 U.S.C. § 1252(a)(2)(C), (D); Dulal-Whiteway v. U.S. Dep’t

21   of Homeland Security, 501 F.3d 116, 120 (2d Cir. 2007).

22   This jurisdictional bar has been extended to petitions

23   seeking review of the BIA’s denials of motions to reopen,

24   where review of the underlying removal order would be

25   prohibited by § 1252(a)(2)(C).     See Durant v. INS, 393 F.3d

                                  2
1    113, 115-16 (2d Cir. 2004) (finding that, because Court

2    lacked jurisdiction under § 1252(a)(2)(C) to review order of

3    removal based on conviction of certain criminal offenses,

4    Court also lacked jurisdiction to review BIA’s denial of a

5    motion to reopen).   Although, pursuant to § 1252(a)(2)(D),

6    we retain jurisdiction over constitutional claims and

7    questions of law, an alien “cannot use the rhetoric of a

8    ‘constitutional claim’ or ‘question of law’ to disguise what

9    is essentially a quarrel about fact-finding or the exercise

10   of discretion.”   Barco-Sandoval v. Gonzales, 516 F.3d 35,

11   39-40 (2d Cir. 2008) (quoting Xiao Ji Chen v. U.S. Dep’t of

12   Justice, 471 F.3d 315, 330 (2d Cir. 2006)).

13       To the extent that the petition for review raises a

14   question of law, it fails.   Grajales argues that the BIA

15   erred by requiring her to demonstrate the Colombian

16   government’s consent or acquiescence in her torture because

17   the BIA should have applied the standard set forth in

18   Khouzam v. Ashcroft, 361 F.3d 161 (2d Cir. 2004), which

19   requires merely the government’s “awareness” that torture

20   exists.   Contrary to her assertions, Khouzam requires both

21   that government officials “know of or remain willfully blind

22   to an act and thereafter breach their legal responsibility



                                   3
1    to prevent it.”   Id. at 171.   Applying this standard, the

2    BIA determined that Grajales’s evidence indicated that the

3    government had taken steps to prevent FARC activities,

4    noting a letter she had submitted from her brother, in which

5    he stated that Colombian police had been helpful and praised

6    the Colombian government for making improvements.    Thus,

7    nothing in the record suggests that the BIA applied the

8    incorrect legal standard in evaluating Grajales’s evidence.

9    See id.; see also Pierre v. Gonzales, 502 F.3d 109 (2d Cir.

10   2007) (explaining that a petitioner must provide evidence of

11   specific intent to inflict severe pain or suffering).

12   Accordingly, we deny the petition for review as to this

13   issue.

14       Grajales’s argument that the BIA “minimized” evidence

15   in the record simply amounts to a challenge to the agency’s

16   factual findings, over which we lack jurisdiction.    See

17   Barco-Sandoval, 516 F.3d at 39-40.    As the BIA referenced

18   and considered Grajales’s exhibits, nothing in the record

19   indicates that the BIA applied an incorrect legal standard

20   in evaluating Grajales’s motion or ignored any evidence in

21   the record.   See Xiao Ji Chen, 471 F.3d at 338 n.17, 342

22   (presuming that the agency has taken into account all of the



                                     4
1    evidence before it, unless the record compellingly suggests

2    otherwise, and stating that the weight afforded to the

3    applicant’s evidence in immigration proceedings lies largely

4    within the discretion of the agency).    Accordingly, Grajales

5    has failed to state a colorable question of law, as her

6    dispute rests largely with the weight accorded by the BIA to

7    the evidence.   Thus, we must dismiss her petition for review

8    to the extent she challenges the BIA’s determination that

9    her evidence was insufficient to support her claim for

10   relief under the CAT, as such challenges do not constitute

11   constitutional claims or questions of law.    See 8 U.S.C.

12   § 1252(a)(2)(C),(D); Durant, 393 F.3d at 115-16.

13       For the foregoing reasons, the petition for review is

14   DENIED in part and DISMISSED in part.    As we have completed

15   our review, the pending motion for a stay of removal in this

16   petition is DENIED as moot.    Any pending request for oral

17   argument in this petition is DENIED in accordance with

18   Federal Rule of Appellate Procedure 34(a)(2), and Second

19   Circuit Local Rule 34.1(b).

20                                 FOR THE COURT:
21                                 Catherine O’Hagan Wolfe, Clerk




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