                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                     No. 11-3487
                                     ___________

                        WINSTON SEYMOUR MCFARLANE,
                                        Petitioner

                                           v.

                 ATTORNEY GENERAL OF THE UNITED STATES
                    ____________________________________

                      On Petition for Review of an Order of the
                            Board of Immigration Appeals
                             (Agency No. A087-417-373)
                   Immigration Judge: Honorable Walter A. Durling
                     ____________________________________

                 Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 April 19, 2012
   Before: SCIRICA, GREENAWAY, JR., and VAN ANTWERPEN, Circuit Judges

                             (Opinion filed: April 20, 2012)
                                     ___________

                                      OPINION
                                     ___________

PER CURIAM

      Winston McFarlane petitions for review of a decision by the Board of Immigration

Appeals. For the reasons below, we will deny the petition for review.

      McFarlane entered the United States in June 2008 as a visitor. After marrying a

citizen, he became a lawful permanent resident in June 2009. In June 2010, McFarlane
pleaded guilty to conspiracy to distribute 100 kilograms or more of marijuana. He was

charged as removable for having committed an aggravated felony, a crime involving

moral turpitude, and a controlled substance offense. McFarlane conceded removability

as to all three charges and applied for deferral of removal under the Convention Against

Torture (CAT). A.R. at 118-19. He argued that the families of his co-defendants would

seek retribution against him if he were removed to Jamaica because he had cooperated

with the prosecution. After a hearing, an Immigration Judge (IJ) denied relief. He

concluded that McFarlane had not shown that the Jamaican government would acquiesce

in any torture. McFarlane filed a counseled appeal with the Board of Immigration

Appeals (BIA). The BIA dismissed the appeal. It concluded that McFarlane had not

shown that it was more likely than not that he would be tortured in Jamaica. McFarlane

filed a pro se petition for review.

       To be eligible for deferral of removal under the CAT, McFarlane must

demonstrate that it is more likely than not that he would be tortured if removed to

Jamaica. 8 C.F.R. § 1208.16(c)(2). For an act to constitute torture, it must be: “(1) an act

causing severe physical or mental pain or suffering; (2) intentionally inflicted; (3) for an

illicit or proscribed purpose; (4) by or at the instigation of or with the consent or

acquiescence of a public official who has custody or physical control of the victim; and

(5) not arising from lawful sanctions.” Auguste v. Ridge, 395 F.3d 123, 151 (3d Cir.

2005) (citing Matter of J-E-, 23 I. & N. Dec. 291, 297 (BIA 2002)).


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       In his brief, McFarlane argues that the government of Jamaica will be unable to

protect him if he is removed. He asserts that no evidence was offered that Jamaica could

protect him and that he provided enough evidence that it could not. However, because

McFarlane is an aggravated felon, we lack jurisdiction to review the denial of his claims

for relief except for legal and constitutional claims. See 8 U.S.C. § 1252(a)(2)(C)&(D).

Moreover, the only issue McFarlane exhausted before the BIA in his counseled appeal

was whether the IJ used the correct standard for determining governmental acquiescence

to torture. We agree with the BIA that the IJ applied the correct standard. See Silva-

Rengifo v. Att’y Gen., 473 F.3d 58, 69 (3d Cir. 2007).

       McFarlane requests that we apply our recent decision in Garcia v. Attorney

General, 665 F.3d 496 (3d. Cir. 2011), to his petition. In Garcia, we concluded that the

BIA’s factual findings supporting the denial of the petitioner’s applications for asylum

and withholding of removal were not supported by substantial evidence. Here, as noted

above, we lack jurisdiction to review the BIA’s factual findings regarding McFarlane’s

CAT claim. Thus, our decision in Garcia does not help McFarlane.

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




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