Kenny Estevez-Acosta v. Attorney General United States
682 F. App'x 178
| 3rd Cir. | 2017Background
- Estevez-Acosta, a Dominican Republic citizen and lawful permanent resident, was convicted in federal court in 2014 of conspiracy to distribute heroin.
- DHS charged him removable as an aggravated felon and for a controlled-substance conviction; an IJ sustained the charges.
- He applied for deferral of removal under the Convention Against Torture (CAT), claiming prior torture by Dominican police in 2001 and subsequent police interest when he failed to report.
- The IJ found the 2001 abuse credible but concluded Estevez-Acosta failed to show it was more likely than not he would be tortured if returned.
- The BIA affirmed, emphasizing absence of post-release threats and calling the claim speculative; Estevez-Acosta petitioned pro se for review.
- The government moved to dismiss for lack of jurisdiction under 8 U.S.C. § 1252(a)(2)(C); the court considered whether legal or constitutional issues remained reviewable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction to review CAT denial | Estevez-Acosta argued BIA applied wrong legal standard on acquiescence and ignored country-conditions evidence (legal error) | Government argued petition should be dismissed for lack of jurisdiction because removal follows §1227(a)(2) conviction | Court: Dismiss in part; factual determinations (likelihood of torture) are unreviewable under §1252(a)(2)(C); limited legal challenge regarding overlooked evidence is reviewable |
| Whether BIA applied wrong standard for governmental acquiescence | Argued BIA misconstrued "acquiescence" and thus committed legal error | BIA based denial on factual finding that torture was not likely to recur; it did not rule on acquiescence | Held: No jurisdiction to review the factual likelihood finding; BIA did not actually decide acquiescence, so claim fails |
| Whether BIA ignored country-conditions evidence | Argued BIA failed to consider evidence of systemic torture and unlawful killings in the Dominican Republic | Government/BIA: BIA’s opinion need not mention every document; record shows BIA considered evidence and relied on lack of post-release threats | Held: Court satisfied BIA considered relevant evidence and provided adequate basis for decision; no reversible legal error found |
| Weight given to evidence (agency factfinding) | Claimed agency improperly weighed evidence supporting CAT relief | Government: Disagreed; agency discretion on weighing evidence is factual and beyond court’s jurisdiction | Held: Court lacks jurisdiction to review discretionary weight given to evidence under §1252(a)(2)(C) |
Key Cases Cited
- Kamara v. Att’y Gen., 420 F.3d 202 (3d Cir. 2005) (retained jurisdiction for constitutional and pure legal questions)
- Sukwanputra v. Gonzales, 434 F.3d 627 (3d Cir. 2006) (factual/discretionary determinations are unreviewable)
- Kaplun v. Att’y Gen., 602 F.3d 260 (3d Cir. 2010) (likelihood of torture is mixed question: factual and legal components)
- Roye v. Att’y Gen., 693 F.3d 333 (3d Cir. 2012) (factual findings on CAT claims are typically beyond jurisdiction)
- Toussaint v. Att’y Gen., 455 F.3d 409 (3d Cir. 2006) (BIA need not explicitly address every piece of documentary evidence)
- Zheng v. Att’y Gen., 549 F.3d 260 (3d Cir. 2008) (BIA must provide an adequate basis to discern reasons for denying relief)
- Pieschacon-Villegas v. Att’y Gen., 671 F.3d 303 (3d Cir. 2011) (court lacks jurisdiction to review criminal alien’s disagreement with BIA’s factual assessment of CAT evidence)