Jose Ventura-Reyes v. Loretta E. Lynch
797 F.3d 348
| 6th Cir. | 2015Background
- Ventura‑Reyes, a Dominican national and U.S. lawful permanent resident, was convicted in 2011 of attempted possession and conspiracy to possess with intent to distribute 5 kg+ of cocaine; a Notice to Appear followed in 2012 and he sought deferral of removal under the CAT.
- He asserted fear of torture if returned based on (1) alleged blame by the politically influential Peguero family for a 1989 killing in his hometown, and (2) alleged (minimal/indirect) cooperation with the DEA that might motivate revenge by the Gonzalez Molina drug family.
- Administrative record: multi‑day merits hearing with testimonial and documentary evidence; IJ found petitioner credible but his uncle Felipe Reyes not credible, excluded some late newspaper articles, and denied CAT deferral for lack of proof that torture would be “more likely than not” or that public officials would acquiesce.
- BIA affirmed the IJ. Ventura‑Reyes appealed, challenging (a) the adverse‑credibility ruling as to Felipe Reyes, (b) exclusion of late proffered news articles, and (c) the IJ/BIA interpretation of “consent or acquiescence of a public official” under 8 C.F.R. § 1208.18(a)(1).
- Because his removal order rests on a controlled‑substance conviction, the court’s review is limited to constitutional claims and questions of law under 8 U.S.C. § 1252(a)(2)(C)–(D); factual challenges are largely barred.
Issues
| Issue | Ventura‑Reyes’ Argument | Government’s Argument | Held |
|---|---|---|---|
| Adverse‑credibility finding as to Felipe Reyes | IJ/BIA misapplied legal standards and failed to compare testimony to documents; factual errors warrant review | IJ gave specific, legitimate reasons for disbelief; credibility is factual and not reviewable here | Dismissed for lack of jurisdiction as essentially a factual challenge; no clear legal error shown |
| Exclusion of late‑filed news articles | IJ/BIA abused discretion and denied due process by excluding timely‑relevant evidence | Admission of evidence is discretionary under 8 C.F.R. §1003.31(c); no constitutional or legal error | Dismissed for lack of jurisdiction; discretionary evidentiary ruling not reviewable as a question of law |
| Interpretation of "consent or acquiescence" by public official under 8 C.F.R. §1208.18(a)(1) | Low‑level officials’ acquiescence can satisfy the regulation; IJ improperly focused on high‑level leadership | BIA/IJ interpretation — acquiescence requires awareness and breach of duty; record did not show state acquiescence | Reviewed de novo as a question of law; court upheld BIA/IJ interpretation and denial of relief on the merits |
| Scope of review given conviction‑based removal (jurisdictional bar) | Petitioner requests merits/substantial‑evidence review despite conviction | §1252(a)(2)(C) bars review except for constitutional/questions of law; Sixth Circuit rejects Ninth Circuit’s on‑the‑merits exception here | Court declines to adopt Ninth Circuit exception; limits review to legal/constitutional issues and dismisses factual challenges |
Key Cases Cited
- Luambano v. Holder, [citation="565 F. App'x 410"] (6th Cir. 2014) (§1252(a)(2)(C) limits review when removal is based on controlled‑substance conviction)
- Perez‑Palafox v. Holder, 744 F.3d 1138 (9th Cir. 2014) (describing an "on‑the‑merits" exception to §1252(a)(2)(C))
- Khodr v. Holder, [citation="531 F. App'x 660"] (6th Cir. 2013) (acknowledging but not adopting Ninth Circuit’s exception; limiting review)
- Gjyzi v. Ashcroft, 386 F.3d 710 (6th Cir. 2004) (BIA may summarily affirm IJ; standard for review of BIA affirmances)
- Denko v. INS, 351 F.3d 717 (6th Cir. 2003) (BIA streamlining procedures and summary affirmances do not per se violate due process)
- Khalili v. Holder, 557 F.3d 429 (6th Cir. 2009) (questions of law reviewed de novo; deference to BIA interpretations)
- INS v. Aguirre‑Aguirre, 526 U.S. 415 (1999) (deference standard for agency interpretations of immigration law)