Herson Granados v. Attorney General United State

Filing

NOT PRECEDENTIAL OPINION Coram: FISHER, HARDIMAN and GREENAWAY, JR., Circuit Judges. Total Pages: 7. Judge: HARDIMAN Authoring. [15-3638, 16-1736]

Case: 15-3638

Document: 003112522368

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Date Filed: 01/26/2017

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
Nos. 15-3638, 16-1736
____________
HERSON ROBERTO GRANADOS,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
____________
On Petition for Review of a Final Order
of the Board of Immigration Appeals
(A078-694-038)
____________
Submitted Under Third Circuit L.A.R. 34.1(a)
January 18, 2017
Before: FISHER, HARDIMAN, and GREENAWAY, JR., Circuit Judges.
(Opinion Filed: January 26, 2017)
____________
OPINION*
____________

*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.

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HARDIMAN, Circuit Judge.
Herson Roberto Granados petitions for review of an order of the Board of
Immigration Appeals (BIA) denying his application for protection under the United
Nations Convention Against Torture (CAT). For the reasons that follow, we will dismiss
the petition for lack of jurisdiction.
I
Granados, a native and citizen of El Salvador, entered the United States without
inspection in 2000. In 2010, he was convicted in New Jersey of robbery under N.J. Stat.
Ann. § 2C:15-1, resulting in a sentence of four years’ imprisonment. The Department of
Homeland Security then sought his removal from the United States pursuant to 8 U.S.C.
§ 1182(a)(6)(A)(i), as an inadmissible person who entered the United States without
admission or parole, and 8 U.S.C. § 1182(a)(2)(A)(i)(I), as an inadmissible person
convicted of a crime involving moral turpitude. Granados conceded removability on the
first charge, and an Immigration Judge (IJ) sustained the second charge and found him
removable.
Granados sought deferral of removal under the CAT, 8 C.F.R. § 1208.17, claiming
that if he were returned to El Salvador, he would be tortured by MS-13 gang members
because he is a former MS-13 member with visible gang tattoos.1 Specifically, he claimed
that he fled El Salvador after he ceased participating in the gang and received threats of

2

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torture and death by MS-13 members. After settling in New Jersey, Granados
encountered members of MS-13 and began tattooing his body with MS-13 symbols to
prove his loyalty. He later moved to another part of New Jersey and stopped associating
with MS-13 members. While in prison on his robbery conviction, however, he obtained
more gang tattoos and continued to associate with gang members for his own safety.
Granados testified that he is no longer a member of MS-13.
On July 1, 2015, the IJ denied Granados’s CAT claim and ordered him removed to
El Salvador. The IJ determined that his robbery conviction was both a crime of moral
turpitude and a particularly serious crime, and that he was therefore ineligible for
withholding of removal under the CAT. See 8 U.S.C. § 1231(b)(3)(B)(ii); 8 C.F.R.
§ 1208.16(d)(2). The IJ further concluded that, although Granados was eligible to apply
for deferral of removal under the CAT, he had not demonstrated that such relief was
warranted.
The IJ found Granados’s testimony credible and concluded that it was more likely
than not that he would be subjected to torture by MS-13 members if returned to El
Salvador. The IJ noted several threats to kill, beat, or stab Granados and an expert’s report
stating that gangs will violently punish someone who flees. Nevertheless, the IJ
concluded: “while [Granados] is threatened with likely torture by the MS-13 in El
Salvador, he is ineligible for deferral of removal under the CAT because he has failed to

1

Although Granados originally filed for asylum and withholding of removal, he
later withdrew those applications during removal proceedings and asserted through
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demonstrate public officials’ acquiescence or consent to his torture.” A.R. 44.
Specifically, the IJ found that “the Salvadoran police are aware of gang violence
constituting torture and are taking meaningful steps to combat it,” noting that Granados
had presented evidence of “the Salvadoran police’s escalating campaign against gangs.”
A.R. 43.
Granados appealed to the BIA, challenging only the denial of his deferral of
removal. On October 27, 2015, the BIA dismissed the appeal. It found no clear error in
the IJ’s determination that Granados failed to meet his burden of proof to show that, if
returned to El Salvador, he would experience torture “inflicted by or at the instigation of
or with the consent or acquiescence of a public official or other person acting in an
official capacity.” A.R. 3 (quoting A.R. 9). Granados filed a timely petition for review.2
II
The BIA had jurisdiction under 8 C.F.R. § 1003.1(b)(3). We have jurisdiction to
review final orders of removal under 8 U.S.C. § 1252(a). Although we may not review a
final order of removal against a petitioner who is removable for committing a criminal
offense listed in 8 U.S.C. § 1182(a)(2), which includes crimes involving moral turpitude,
we retain jurisdiction to review colorable constitutional claims and questions of law. 8

counsel that he was only seeking CAT protection.
2
Granados later filed a motion to reopen his removal proceedings based on
changed country conditions, which the BIA denied as untimely. Granados then filed a
second petition for review, which was consolidated with his prior petition. In his brief on
appeal, Granados withdraws his second petition for review and proceeds only on his
initial petition.
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U.S.C. § 1252(a)(2)(C)–(D). Where the BIA’s decision “invokes specific aspects of the
IJ’s analysis and factfinding in support of the BIA’s conclusions” as it did here, we
review the decisions of both the IJ and the BIA. Voci v. Gonzales, 409 F.3d 607, 613 (3d
Cir. 2005).
Granados first argues that the BIA and IJ failed to consider evidence relating to his
claim that the police would not protect him as a former gang member. Granados is correct
that “all evidence relevant to the possibility of future torture” must be considered in
reviewing a CAT application. 8 C.F.R. § 1208.16(c)(3). But the record here shows that
the IJ and BIA considered evidence relating to the El Salvadoran government’s treatment
of Granados and other gang members, yet did not find that the police would consent to or
acquiesce in any harm inflicted on Granados or fail to protect him. In particular, the IJ
considered Granados’s testimony and other evidence of the police’s treatment of gang
members—including State Department, expert, and media reports—but found that
Salvadoran officials were taking meaningful steps to address gang violence. Moreover,
the IJ found that Granados had not “provided evidence that it is in fact the policy or
practice of the police to deny protection to former gang members,” and the BIA held that
this finding was not clearly erroneous. A.R. 4, 43 (emphasis added). Indeed, Granados
concedes on appeal that “no evidence was presented demonstrating that the Salvadoran
police have a policy or practice of acquiescence.” Granados Br. 19. “It is therefore
apparent that [Granados]’s real argument is not that relevant evidence was ignored, but
rather that the IJ incorrectly weighed evidence in making factual determinations. . . . [W]e
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lack jurisdiction to consider such an argument.” Green v. Att’y Gen., 694 F.3d 503, 508
(3d Cir. 2012).
Granados also argues that the BIA failed to consider evidence that he was tortured
in the past, which is relevant to the possibility of future torture. However, both the BIA
and IJ found that Granados will likely be targeted for harm, but not by or with the consent
or acquiescence of the Salvadoran government. Again, we lack jurisdiction to review this
factual conclusion. See id. at 507 (“[W]e lack jurisdiction to consider Green’s argument
that the IJ erred in determining that the Jamaican government would not consent to or
acquiesce in the Shower Posse’s actions.”).
Finally, Granados argues that the BIA and IJ applied an incorrect legal standard for
evaluating Granados’s claims. Specifically, he claims that the BIA and IJ imposed a
“stringent and inappropriate” standard of acquiescence upon him “by requiring him to
demonstrate that it is the policy or practice of the police to deny protection to former gang
members.” Granados Br. 16 (internal quotation marks omitted). As an initial matter,
Granados failed to raise this argument before the BIA and has therefore failed to exhaust
this claim. See 8 U.S.C. § 1252(d)(1); Castro v. Att’y Gen., 671 F.3d 356, 365 (3d Cir.
2012) (requiring administrative exhaustion as a jurisdictional prerequisite). In any event,
neither the BIA nor the IJ required Granados to provide evidence of such policy or
practice as a matter of law. Instead, they merely responded to Granados’s claim that the
police would not protect him as a former gang member by noting that he failed to present
evidence of any policy or practice of such selective law enforcement.
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In sum, Granados has raised what amounts to a disagreement with the agency’s
factual determination that he failed to sufficiently demonstrate that public officials in El
Salvador would likely consent to or acquiesce in his torture, and this argument is
unreviewable. See Green, 694 F.3d at 507; Pieschacon-Villegas v. Att’y Gen., 671 F.3d
303, 309 (3d Cir. 2011). Accordingly, we will dismiss the petition for lack of jurisdiction.

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