Ortiz-Franco v. Holder
782 F.3d 81
| 2d Cir. | 2015Background
- Ortiz-Franeo, a Salvadoran national, conceded removability based on illegal entry and criminal convictions (including a controlled-substance offense and a crime of moral turpitude).
- He participated in a proffer in a federal MS-13 prosecution; his proffer statements were shared with co-defendants, and he later pled guilty to witness tampering.
- Ortiz-Franeo applied for asylum, withholding, and deferral of removal under the Convention Against Torture (CAT); IJ and BIA denied CAT deferral, finding he failed to prove it was "more likely than not" he would be tortured with Salvadoran government acquiescence.
- He appealed the CAT deferral denial to the Second Circuit, arguing the agency erred on the likelihood-of-torture and government-acquiescence findings.
- The government argued, and the Court considered, that 8 U.S.C. § 1252(a)(2)(C) limits appellate review for aliens removable by reason of certain crimes to only constitutional claims and questions of law under § 1252(a)(2)(D).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Second Circuit has jurisdiction to review denial of CAT deferral when petitioner is removable for covered criminal offenses | Ortiz-Franeo: §1252(a)(4) makes the petition-for-review the exclusive avenue for CAT claims and does not limit review to legal/constitutional issues; deferral is a temporary, non-final remedy so §1252(a)(2)(C) should not apply | Government: §1252(a)(2)(C) strips jurisdiction over final removal orders against aliens removable for covered crimes; review is limited by §1252(a)(2)(D) to constitutional claims/questions of law; CAT claims are reviewable only as part of a petition for review of a final order of removal | Court: Dismissed for lack of jurisdiction — when alien is removable for a covered crime, review of CAT deferral denials is limited to colorable constitutional claims or questions of law; Ortiz-Franeo raised none |
| Whether §1252(a)(4) overrides §1252(a)(2)(C)’s jurisdictional bar | Ortiz-Franeo: §1252(a)(4)’s "any cause or claim" language permits full review of CAT claims | Government: §1252(a)(4) only channels CAT claims into petitions for review; it does not expand jurisdiction beyond §1252(a)(2)(C)’s limits | Court: §1252(a)(4) does not expand appellate jurisdiction; it confirms CAT claims are reviewable only within petition-for-review framework |
| Whether denial of CAT deferral is non-final (so §1252(a)(2)(C) shouldn't apply) | Ortiz-Franeo: Deferral is temporary like an injunction and thus non-final | Government: Implementing regulations treat CAT deferral as part of the final order of removal reviewable under §1252; denying deferral allows immediate removal | Court: Denial of deferral is reviewable as part of a final order of removal and §1252(a)(2)(C) applies |
| Whether factual disputes underlying CAT denials can be recharacterized as legal error to invoke review | Ortiz-Franeo: Contends BIA mischaracterized or ignored evidence, implying legal error | Government: Repackaging factual challenges as legal claims cannot evade §1252(a)(2)(C) bar | Court: Mere disagreement with agency factfinding or conclusory claims of mischaracterization do not create colorable legal or constitutional claims; jurisdiction absent |
Key Cases Cited
- De La Rosa v. Holder, 598 F.3d 103 (2d Cir. 2010) (noting limited review for criminal aliens seeking CAT relief)
- Pierre v. Gonzales, 502 F.3d 109 (2d Cir. 2007) (discussing jurisdictional limits for criminal aliens and CAT claims)
- Pierre v. Holder, 738 F.3d 39 (2d Cir. 2013) (agency order denying CAT deferral qualifies as an order of removal appealable to the court)
- Escudero-Arciniega v. Holder, 702 F.3d 781 (5th Cir. 2012) (holding no jurisdiction to review factual determinations on CAT deferral for criminal aliens)
- Wanjiru v. Holder, 705 F.3d 258 (7th Cir. 2013) (concluding CAT deferral is non-final and reviewable — circuit split point)
- Lemus-Galvan v. Mukasey, 518 F.3d 1081 (9th Cir. 2008) (holding denial of CAT deferral not covered by §1252(a)(2)(C))
- Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998) (federal courts must establish jurisdiction before reaching merits)