    15-544
    Toolsie v. Lynch
                                                                                         BIA
                                                                                  Sagerman, IJ
                                                                                 A205 308 528
                            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
    28th day of January, two thousand sixteen.

    PRESENT:
             ROBERT A. KATZMANN,
                  Chief Judge,
             BARRINGTON D. PARKER,
             DENNY CHIN,
                  Circuit Judges.
    _____________________________________

    TIRNARINE TOOLSIE,
             Petitioner,

                       v.                                              15-544
                                                                       NAC
    LORETTA E. LYNCH, UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________


    FOR PETITIONER:                       Nataliya I. Gavlin, Gavlin &
                                          Associates,C., New York, NY.

    FOR RESPONDENT:                       Benjamin C. Mizer, Principal Deputy
                                          Assistant Attorney General; Carl
                                          McIntyre, Assistant Director; Nancy
                                          E. Friedman, Senior Litigation
                                          Counsel, 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 DISMISSED

for lack of jurisdiction.

      Petitioner Tirnarine Toolsie, a native and citizen of

Suriname, seeks review of a February 4, 2015 decision of the

BIA affirming an October 2, 2014 decision of an Immigration Judge

(“IJ”) denying Toolsie’s application for withholding of removal

and relief under the Convention Against Torture (“CAT”). In re

Tirnarine Toolsie, No. A205 308 528 (B.I.A. Feb. 4, 2015), aff’g

No. A205 308 528 (Immig. Ct. Napanoch Oct. 2, 2014). We assume

the   parties’   familiarity    with   the   underlying   facts   and

procedural history in this case.

      We generally lack jurisdiction to review a final order of

removal against an alien who, like Toolsie, is removable by

reason of having been convicted of an aggravated felony.           8

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

86 (2d Cir. 2015). However, we retain jurisdiction to conduct

de novo review of “constitutional claims or questions of law.”

8 U.S.C. § 1252(a)(2)(D); Pierre v. Holder, 588 F.3d 767, 772

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(2d Cir. 2009). When assessing jurisdiction, we must “study the

arguments asserted” to “determine, regardless of the rhetoric

employed in the petition, whether it merely quarrels over the

correctness     of   the   factual   findings”        or   raises   a   true

constitutional claim or question of law.              Xiao Ji Chen v. U.S.

Dep’t of Justice, 471 F.3d 315, 329 (2d Cir. 2006).                 None of

Toolsie’s arguments on appeal constitutes a constitutional claim

or question of law.

    Toolsie first argues that the IJ clearly erred in making

an adverse credibility finding to reject Toolsie’s claim that

he is gay and consequently fears persecution and torture in his

native Suriname. The IJ found Toolsie’s testimony not credible,

in part, because Toolsie “initially testified that he had

practiced homosexuality” with a man he met on Facebook, see

Certified Administrative Record at 53, but on cross-examination,

admitted that he had never had physical contact with another

man. Toolsie asserts that the IJ’s credibility assessment was

premised   on    the   erroneous         assumption     that   “practicing

homosexuality” must entail intercourse or sexual touching.

    Toolsie’s argument misreads the record. Not only did the

IJ also find Toolsie not credible because he failed to produce


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available corroborating evidence, but also Toolsie did, in fact,

claim on direct examination that he had “sexual relation[s]”

with the man he met through Facebook, Certified Administrative

Record at 96, disproving Toolsie’s claim that the IJ’s decision

rested on a specific and arbitrary definition of “practicing

homosexuality.”      Thus,   despite   Toolsie’s   efforts   to

recharacterize the IJ’s decision, the argument “merely quarrels”

with a factual finding and is therefore beyond our jurisdiction.

Xiao Ji Chen, 471 F.3d at 329.

    Toolsie next attacks the agency’s finding that he failed

to demonstrate a likelihood of persecution or torture in

Suriname.   On this point, Toolsie attempts to manufacture a

legal error by arguing that the IJ failed to consider both

Toolsie’s testimony about his sister’s comments on homophobia

in Suriname and a passage from the 2013 State Department Country

Report on Human Rights Practices that states that the gay

community in Suriname is stigmatized and abused. Cf. Tambadou

v. Gonzales, 446 F.3d 298, 302 (2d Cir. 2006) (“We remand for

reconsideration or rehearing (or a new hearing) where the IJ’s

or BIA’s determination ‘is based on an inaccurate perception

of the record, omitting potentially significant facts.’”


                               4
(quoting Tian-Yong Chen v. INS, 359 F.3d 121, 127 (2d Cir. 2004)).

This, too, is the type of “rhetoric” we must look past. Xiao

Ji Chen, 471 F.3d at 329. The IJ stated repeatedly that it found

Toolsie’s   testimony     not    credible,    and     the    IJ   gave    full

consideration    to   the    State       Department       Country    Report.

Toolsie’s real complaint, therefore, is about how the IJ weighed

the evidence, which we lack jurisdiction to review.

     Finally, Toolsie challenges the agency’s determination

that the aggravated felony underlying the removal order, robbery

in the second degree, ranked as a “particularly serious crime.”

Withholding of removal is unavailable under the Immigration and

Nationality Act or the CAT if an alien has been convicted of

a “particularly serious crime.” 8 U.S.C. § 1231(b)(3)(B)(ii);

8 C.F.R. § 1208.16(d)(2). If, as here, the crime is not per se

particularly serious, 8 U.S.C. § 1231(b)(3)(B)(iv) (providing

that aggravated felonies that result in an aggregate prison

sentences of five years or more are particularly serious as a

matter of law), then the agency evaluates whether it is

particularly    serious     by   “examin[ing]       the     nature   of    the

conviction, the type of sentence imposed, and the circumstances

and underlying facts of the conviction.”            In Re N-A-M-, 24 I.


                                     5
& N. Dec. 336, 342 (BIA 2007). The IJ considered these factors

and found that Toolsie had been convicted of a particularly

serious crime.   Toolsie argues that his crimes should not be

deemed particularly serious because a state court judge granted

his motion for a “Violent Felony Override” based on a finding

that the offense did not involve the use of a deadly or dangerous

instrument or the infliction of serious physical injury.

N.Y.C.R.R.   §   1900.4(c)(1)(iii).   Toolsie,   however,   never

introduced any documentation of the state court judge’s ruling

in the proceedings below, and so it is outside the administrative

record.   8 U.S.C. § 1252(b)(4)(A).      And, even if he had

introduced the ruling, it would be but one more piece of evidence

for the IJ to weigh in making a factual determination about the

seriousness of Toolsie’s offense. His argument is thus neither

a constitutional claim nor a question of law. It is therefore

beyond our jurisdiction. Ortiz-Franco, 782 F.3d at 91.

    For the foregoing reasons, the petition for review is

DISMISSED. As we have completed our review, the pending motion

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

                             FOR THE COURT:
                             Catherine O’Hagan Wolfe, Clerk



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