665 F. App'x 184
3rd Cir.2016Background
- Aguilar, a Salvadoran national who entered without admission, was convicted in New Jersey of second-degree aggravated assault and sentenced to four years. He conceded removability as charged (crime involving moral turpitude and unlawful presence).
- He applied for withholding of removal (INA §1231(b)(3)) and protection under the CAT, claiming past gang involvement in El Salvador and fear of MS-13 retaliation; supporting affidavit and country conditions evidence were submitted.
- The Immigration Judge (IJ) found Aguilar’s conviction to be a "particularly serious crime," rendering him ineligible for withholding of removal and for CAT protection, and alternatively found he failed to show likelihood of torture with government acquiescence.
- The Board of Immigration Appeals (BIA) affirmed: categorized the aggravated assault (given elements, Aguilar’s admissions, and four-year sentence) as "particularly serious," and agreed the CAT showing failed on government acquiescence.
- Aguilar petitioned for review in the Third Circuit; the government moved to dismiss for lack of jurisdiction under 8 U.S.C. §1252(a)(2)(C). Aguilar’s pro se brief disputed factual findings on CAT risk but raised no colorable legal or constitutional claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction under §1252(a)(2)(C) over removal order based on crime involving moral turpitude | Aguilar did not contest removability; sought review of CAT factual findings | Government: §1252(a)(2)(C) bars review of orders of removal based on criminal convictions; Aguillar raised no colorable legal/constitutional claims | Court dismissed petition for lack of jurisdiction; retained review only for colorable law/constitutional claims which were not raised |
| Whether Aguilar’s conviction is a "particularly serious crime" disqualifying withholding of removal | Aguilar: Frentescu factors show his assault was not particularly serious (occurred while separating a fight; reactive conduct) | Government/BIA: Elements, Aguilar’s admission of causing injury, and four-year sentence support a particularly serious finding | Court agreed BIA/IJ properly found the assault a particularly serious crime under Board precedent |
| Whether Aguilar met burden for CAT relief (torture more likely than not) showing government acquiescence | Aguilar: country conditions and evidence of gang prevalence show government willful blindness/acquiescence so torture likely | Government/BIA: evidence did not show government involvement or acquiescence sufficient to meet CAT standard | Court held the factual CAT claim is unreviewable here and, on merits, agency determination that Aguilar failed to show government acquiescence was not properly challenged as a reviewable legal issue |
| Whether the Board misapplied precedent or improperly used non-categorical analysis for particularly serious crime | Aguilar: BIA misapplied Frentescu and over-relied on extrinsic evidence | Government/BIA: long-standing BIA practice examines wide range of evidence; categorical approach not required for particularly serious determination | Court found no merit to challenge; affirmed that BIA may consider conviction elements, sentencing, and other reliable evidence to determine particular seriousness |
Key Cases Cited
- Denis v. Att’y Gen. of U.S., 633 F.3d 201 (3d Cir.) (crimes involving use or threat of force tend to be particularly serious)
- Alaka v. Att’y Gen. of U.S., 456 F.3d 88 (3d Cir.) (jurisdictional discussion and prior holding relating aggravated felonies to particularly serious crime analysis)
- Pieschacon-Villegas v. Att’y Gen. of U.S., 671 F.3d 303 (3d Cir.) (factual challenges to agency CAT findings are generally unreviewable)
- Lie v. Ashcroft, 396 F.3d 530 (3d Cir.) (issues not raised on appeal are waived)