Angel Solorzano-Zelaya v. Atty Gen USA

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MANDATE ISSUED, filed.

Angel Solorzano-Zelaya v. Atty Gen USA

Doc. 0 Att. 1

Case: 09-1851

Document: 003110228187

Page: 1

Date Filed: 07/26/2010

NOT PRECEDENTIAL U N IT E D STATES COURT OF APPEALS F O R THE THIRD CIRCUIT ___________ N o . 09-1851 ___________ A N G E L LEONARDO SOLORZANO-ZELAYA, a/k/a Angel Solorzano, a/k/a Angel Sobrzano, Petitioner v. A T T O R N E Y GENERAL OF THE UNITED STATES, Respondent ____________________________________ O n Petition for Review of an Order of the Board of Immigration Appeals (A g e n c y No. A040-427-293) Im m ig ra tio n Judge: Honorable Annie S. Garcy ____________________________________ S u b m itte d Pursuant to Third Circuit LAR 34.1(a) M a y 19, 2010 B e f o re : BARRY, STAPLETON and NYGAARD, Circuit Judges (O p in io n filed: June 2, 2010) _________ OPINION _________ P E R CURIAM A n g e l Solorzano-Zelaya petitions for review of the Board of Immigration Appeals' (" B IA " ) February 25, 2009 decision, which affirmed the Immigration Judge's ("IJ")

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Case: 09-1851

Document: 003110228187

Page: 2

Date Filed: 07/26/2010

O c to b e r 30, 2008 decision denying his request for relief under the Convention Against T o rtu re ("CAT") and ordering his removal to Honduras. The Government has moved to d is m is s the petition for lack of jurisdiction. For the reasons that follow, the G o v e rn m e n t's motion is denied, and we will deny Solorzano-Zelaya's petition. I. S o lo rz a n o -Z e la ya , a native and citizen of Honduras, was admitted into the United S tates as a lawful permanent resident in 1987. In 2001, a New Jersey state court c o n v ic te d him of robbery and unlawful possession of a weapon, and sentenced him to five ye a rs ' imprisonment. While in prison, he joined a gang and got at least one tattoo, which is in the shape of a teardrop and located below his eye. In light of his robbery conviction, the Department of Homeland Security c o m m e n c e d removal proceedings against him in September 2007 pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii). He conceded removability and applied for CAT relief. He claimed th a t although he was no longer in a gang, he would likely be identified as a gang member b e c au s e of his teardrop tattoo and consequently tortured by, or with the acquiescence of, th e Honduran government. In April 2008, the IJ granted Solorzano-Zelaya deferral of removal under the CAT. The Government appealed the decision to the BIA, which sustained the appeal in July 2 0 0 8 , concluding that Solorzano-Zelaya had not met his burden for relief under the CAT. The BIA did not explicitly vacate the IJ's decision; rather, the BIA simply remanded the

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Case: 09-1851

Document: 003110228187

Page: 3

Date Filed: 07/26/2010

c a se to the IJ. The Government subsequently filed an unopposed motion to certify the ca se back to the BIA, seeking further guidance as to how to proceed with the case. In O c to b e r 2008, the IJ denied that motion, stating that "this court is convinced that the B o ard did have the intention to vacate the decision of the [IJ]." (Admin. Rec. at 33.) In th a t same October 2008 order, the IJ vacated her April 2008 decision, denied SolorzanoZ e la ya ' s application for CAT relief, and ordered his removal to Honduras. S o lo rz a n o -Z e la ya appealed the IJ's October 2008 decision to the BIA, which a f f irm e d on February 25, 2009. The BIA, noting that his appeal "further argue[d] in s u p p o rt of his contention that he is likely to be tortured in Honduras," held that "[t]o the e x te n t that [his] appeal could be viewed as a motion to reconsider our July 23, 2008, d ec isio n , [his] arguments are insufficient to warrant reconsideration." (Id. at 2.) The BIA a ls o rejected his claim that it had failed to consider all of his evidence, and concluded that " [ t] h e re is no reason to disturb our conclusion that the evidence is insufficient to establish that [he] is more likely than not to be tortured if he is removed to Honduras." (Id. at 2-3.) Solorzano-Zelaya now petitions for review of the BIA's February 25, 2009 d e c is io n . The Government seeks to dismiss the petition for lack of jurisdiction. II. A lth o u g h we generally lack jurisdiction to review final orders of removal against a lie n s who, like Solorzano-Zelaya, are removable for having committed an aggravated fe lon y, see 8 U.S.C. § 1252(a)(2)(C), we nonetheless have jurisdiction to review "pure

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Case: 09-1851

Document: 003110228187

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Date Filed: 07/26/2010

q u e stio n s of law" and "issues of application of law to fact, where the facts are undisputed a n d not the subject of challenge." Kamara v. Att'y Gen. of the U.S., 420 F.3d 202, 211 (3d Cir. 2005) (quotation marks and citations omitted); see 8 U.S.C. § 1252(a)(2)(D). T h e Government argues that dismissal is warranted here because Solorzano-Zelaya d o es not raise any legal questions. We disagree. His petition alleges that the BIA m isa p p lied the CAT standard to the undisputed facts of this case, and that the IJ erred in is s u in g its October 2008 order of removal in the absence of an express mandate from the B IA . Because these claims fall within the ambit of our jurisdiction, we deny the G o v e rn m e n t's motion and turn to the merits of Solorzano-Zelaya's petition.1 I I I. W e first consider Solorzano-Zelaya's claim that the IJ should not have issued an o rd e r of removal without an express mandate from the BIA. Although the BIA's July 2 0 0 8 decision remanded the case to the IJ without further instruction, the BIA's rejection o f Solorzano-Zelaya's CAT claim ­ the only claim standing between him and his removal to Honduras ­ left the IJ with nothing to do but order his removal.2 Solorzano-Zelaya has f a iled to identify any authority indicating that an IJ cannot order an alien's removal in s u c h an instance. Accordingly, we find no error here. W e now turn to his CAT claim. To obtain relief under the CAT, an alien must
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We have jurisdiction over his petition pursuant to 8 U.S.C. § 1252(a)(1).

H a d the BIA somehow intended a different result, it surely would have said so in its February 2009 decision, rather than simply affirming the IJ's order of removal. 4

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Case: 09-1851

Document: 003110228187

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Date Filed: 07/26/2010

sh o w that it is "more likely than not" that he will be tortured if removed to the country in q u e stio n . 8 C.F.R. § 208.16(c)(2). "Torture" is defined as the intentional infliction of " se v e re pain or suffering . . . by or at the instigation of or with the consent or a c q u ie s c e n c e of a public official or other person acting in an official capacity." 8 C.F.R. § 208.18(a)(1). S o lo rz a n o -Z e la ya argues that the BIA correctly articulated the CAT standard but m is a p p lie d it to his case by ignoring evidence and reaching a conclusion unsupported by th e record. We disagree. Although he points to an article stating that the Honduran g o v e rn m e n t "arrested more than 4,000 gang members in 2003, often solely because they w o r e tattoos or colors of known gangs," (Admin. Rec. at 466), that conduct does not rise to the level of torture. Additionally, his evidence that so-called "death squads" have ta rg e te d gang members in Honduras does not establish that he himself, now a thirty-oneye a r-o ld former gang member, would likely be targeted, for that evidence focuses on a c tio n s taken against youth gang members. Cf. Castellano-Chacon v. INS, 341 F.3d 533, 5 5 2 (6th Cir. 2003) (rejecting a twenty-seven-year-old former gang member's CAT claim, w h e r e he had submitted evidence describing the targeting of young gang members, g en era lly those twenty-three years old or younger, in Honduras). H a v in g reviewed the record, we are confident that the BIA considered all of the e v id e n c e and properly applied the CAT standard. Because Solorzano-Zelaya has not e s ta b lis h e d that the BIA erred as a matter of law, we will deny his petition for review.

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