Opinion
No. 09-5257-ag.
December 14, 2010.
UPON CONSIDERATION of the petition for review of a Board of Immigration Appeals decision, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the petition for review is DISMISSED for want of jurisdiction.
Joshua Bardavid, New York, NY, for Petitioner.
Nancy E. Friedman, Senior Litigation Counsel (Tony West, Assistant Attorney General, and Richard Evans, Assistant Director, Office of Immigration Litigation, on the brief), Civil Division, U.S. Department of Justice, Washington, DC, for Respondent.
SUMMARY ORDER
Petitioner Patrick Saint Firmin ("petitioner" or "Firmin"), a native and citizen of Haiti, seeks review of a November 24, 2009 order of the Board of Immigration Appeals ("BIA") dismissing his appeal from a decision by the Immigration Judge ("IJ") denying his application for withholding of removal under 8 U.S.C. § 1231(b)(3) and for protection under the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment ("CAT"), Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85. Firmin argues that the IJ applied the wrong legal standard to his claims under the CAT and that the IJ failed to take into account all of the relevant evidence regarding the risk that he will be tortured in Haiti. He does not challenge the BIA's decision insofar as it affirms the IJ's finding that he is an aggravated felon subject to removal on the basis of his state robbery conviction. See 8 U.S.C. § 1227(a)(2)(A)(iii). We assume the parties' familiarity with the remaining factual and procedural history of the case.
Our jurisdiction over Firmin's claims is limited by 8 U.S.C. § 1252(a)(2)(C), which provides: "[N]o court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed [an aggravated felony]." See Noble v. Keisler, 505 F.3d 73, 77 (2d Cir. 2007). We may, however, review Firmin's petition if it raises "colorable constitutional claims or questions of law." Bugayong v. I.N.S., 442 F.3d 67, 68 (2d Cir. 2006) (internal quotation marks omitted); see also 8 U.S.C. § 1252(a)(2)(D).
Here, Firmin's arguments do not present colorable questions of law and are essentially "disputes [with] the correctness of [the agency's] fact-finding or the wisdom of [the] exercise of discretion." Xiao Ji Chen v. U.S. Dep't of Justice, 471 F.3d 315, 329 (2d Cir. 2006). First, Firmin asserts that the IJ applied the wrong legal standard in denying him relief under the CAT because the IJ examined only whether Firmin faced harm by government actors, not by private individuals. See Khouzam v. Ashcroft, 361 F.3d 161, 171 (2d Cir. 2004) (holding that an alien applying for relief under the CAT need not show willful action on the part of the government but only willful blindness or knowledge of an act of torture committed by private actors). But there is no basis whatever for Firmin's claim: the IJ found that Firmin "failed to prove that anyone in Haiti would be able to . . . harm him, much less torture him," and the BIA confirmed that Firmin "failed to establish that it is more likely than not that he will be tortured in Haiti by or with the acquiescence . . . of a public official or another person acting in an official capacity."
Second, Firmin argues that the IJ failed to consider Firmin's aunt's testimony that Firmin's last name was recognizable in Haitian political circles and that her mother (Firmin's grandmother) had experienced "some kind of scary moment" when identified by political opponents in Haiti in 1998. Again, Firmin fails to assert a colorable question of law. The IJ specifically summarized Firmin's aunt's testimony and deemed it credible, but ruled that Firmin had not demonstrated why he would be targeted in Haiti due to his family's political activities in the late 1980s and 1990s. Furthermore, we generally "presume that an IJ has taken into account all of the evidence before him, unless the record compellingly suggests otherwise." Xiao Ji Chen v. U.S. Dept. of Justice, 434 F.3d 144, 159 n. 13 (2nd Cir. 2006). The record here reflects nothing but a fully informed decision.
CONCLUSION
We have considered each of Firmin's claims on appeal and find them to be without merit. Firmin's petition raises no "colorable constitutional claims or questions of law." Bugayong, 442 F.3d at 68. Accordingly, his petition for review is DISMISSED for want of jurisdiction. As we have completed our review, any pending motion for a stay of removal is DISMISSED.