Jaime Pinillos Prieto v. Attorney General United State

Filing

NOT PRECEDENTIAL PER CURIAM OPINION Coram: SHWARTZ, COWEN and FUENTES, Circuit Judges. Total Pages: 7.

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 16-3962
___________
JAIME PINILLOS-PRIETO,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A096-486-055)
Immigration Judge: Honorable Kuyomars Q. Golparvar
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
June 1, 2017
Before: SHWARTZ, COWEN, and FUENTES, Circuit Judges
(Opinion filed: June 5, 2017)
___________
OPINION*
___________
PER CURIAM
The Board of Immigration Appeals issued a final order directing that Jaime
Pinillos-Prieto, a native and citizen of Colombia, be removed from the United States.
*

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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Pinillos-Prieto has petitioned us to review the Board’s order. We will dismiss the petition
in part and deny the petition in part because Pinillos-Prieto has not raised any viable
constitutional claims or legal questions.
Pinillos-Prieto entered the United States on a business visa in 2001. He was
convicted in 2003 of federal drug-trafficking crimes, see Pinillos v. United States, 990 F.
Supp. 2d 83, 88 (D.P.R. 2013), and eventually received a sentence of 188 months’
imprisonment. That led the government to charge Pinillos-Prieto with removal as an
alien convicted of an aggravated felony.
Pinillos-Prieto sought withholding of removal before an Immigration Judge. In
that proceeding, he argued that his conviction was invalid because it was based on the
perjured testimony of two Drug Enforcement Administration informants who also
worked with the Colombian police. Pinillos-Prieto also asserted that he feared torture at
the behest of those two informants. Pinillos-Prieto’s fear was based on his beliefs that the
two informants travel back and forth between the United States and Colombia, that they
were involved in drug trafficking, and that they would track him down if he were forced
to return home. The asserted motivation for that desire to harm Pinillos-Prieto was that
the informants would not want their allegedly corrupt role in his trial to come to light.
Pinillos-Prieto conceded, however, that neither informant had contacted him since his
trial and that he did not know whether they were in Colombia. Pinillos-Prieto did not
assert that any person would intend to harm him other than those two informants or their
associates.
The IJ determined that Pinillos-Prieto was statutorily ineligible for withholding of
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removal under both the Immigration & Nationality Act, see 8 U.S.C. § 1231(b)(3)(B)(ii),
and the Convention Against Torture (“CAT”), see 8 C.F.R. § 1208.16(c)(4) and (d)(2),
because his narcotics crime was an aggravated felony that was also a particularly serious
crime. And while Pinillos-Prieto was still potentially eligible for deferral of removal
under the CAT, see 8 C.F.R. § 1208.16(c)(4), the IJ concluded that Pinillos-Prieto had not
established that it was more likely than not that he would be tortured if removed to
Colombia. The IJ thus denied all relief.
Pinillos-Prieto appealed to the Board and moved that the Board reopen his case to
consider what he called additional evidence in support of his contention that he was
innocent of his drug-trafficking crime. The Board dismissed the appeal as meritless and
denied the motion to reopen. Pinillos-Prieto then filed this petition for review.
We have jurisdiction to review final orders of removal under 8 U.S.C. § 1252(a).
In cases involving criminal aliens who are deemed removable under § 1227(a)(2), like
Pinillos-Prieto, the scope of our review is narrower. In such cases, we may entertain only
constitutional claims and questions of law, and lack jurisdiction to review any factual or
discretionary determinations. See 8 U.S.C. §§ 1252(a)(2)(C)-(D).
Pinillos-Prieto raises three main issues. First, he argues that the Board used the
wrong legal standard concerning the meaning of acquiescence in torture, ignored
evidence of acquiescence in the record, and applied the wrong standard of review to the
IJ’s denial of deferral of removal. Second, he argues that his underlying aggravatedfelony conviction is invalid. Third, he argues that the Board abused its discretion when it
denied his motion to reopen.
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We may readily dispose of the latter two arguments. Pinillos-Prieto’s contention
that his 2003 drug-trafficking conviction is unlawful does not present a cognizable
constitutional claim or legal issue, let alone a meritorious one: he may not collaterally
attack his criminal judgment in removal proceedings. See Orabi v. Att’y Gen., 738 F.3d
535, 543 (3d Cir. 2014); Drakes v. INS, 330 F.3d 600, 603 (3d Cir. 2003). Nor does
Pinillos-Prieto’s challenge to the Board’s discretionary denial of his motion to reopen
present a constitutional claim or legal issue. See Cruz v. Att’y Gen., 452 F.3d 240, 24647 (3d Cir. 2006).
Pinillos-Prieto’s merits argument that the Board applied the wrong legal standard
for torture claims and applied the wrong standard of review to the IJ’s decision, however,
potentially raises a colorable constitutional or legal claim. Questions of law may
encompass both “pure questions of law” and also “issues of application of law to fact,
where the facts are undisputed and not the subject of challenge.” Kamara v. Att’y Gen.,
420 F.3d 202, 211 (3d Cir. 2005) (internal quotation marks and citations omitted). Here,
the question of what legal standard applies for torture claims and what standard of review
the Board should apply to review such claims implicates a legal issue, and is not merely a
disagreement with the agency’s underlying factual findings. We therefore have
jurisdiction to consider that aspect of Pinillos-Prieto’s petition for review.
To succeed on a CAT claim, a petitioner must demonstrate “‘that it is more likely
than not that he . . . would be tortured if removed to the proposed country of removal.’”
Sevoian v. Ashcroft, 290 F.3d 166, 174-75 (3d Cir. 2002) (quoting 8 C.F.R.
§ 1208.16(c)(2)). To provide a basis for relief, however, the torture must be “by or at the
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instigation of or with the consent or acquiescence of a public official or other person
acting in an official capacity.” 8 C.F.R. § 1208.18(a)(1). The IJ must first determine
what is likely to happen to the petitioner, and then must determine whether those
probable events amount to the legal definition of torture. Myrie v. Att’y Gen., No. 161599, 2017 WL 1526272, at *5 (3d Cir. Apr. 28, 2017). The Board reviews the first
question for clear error and reviews the second question de novo. Id.
When the basis for the torture claim is government acquiescence, the IJ first
“makes a factual finding or findings as to how public officials will likely act in response
to the harm the petitioner fears. Next, the IJ assesses whether the likely response from
public officials qualifies as acquiescence under the governing regulations.” Id. Again,
the Board reviews the first question for clear error and the second question de novo. Id.
This Court has held that one way a petitioner can show that a government acquiesces in
torture is if it is “willfully blind” to such activities. See Silva-Rengifo v. Att’y Gen., 473
F.3d 58, 65 (3d Cir. 2007). A government can be found to be willfully blind “even if it
was unable to control those engaged in torturous activity.” Pieschacon-Villegas v. Att’y
Gen., 671 F.3d 303, 311 (3d Cir. 2011).
In this case, the IJ specifically mentioned that a CAT claim could be based on the
“willful blindness” of a public official, but found that Pinillos-Prieto had not shown that
it was more likely than not that he would be harmed at all. The IJ first made factual
findings about what is likely to happen to Pinillos-Prieto if removed to Colombia. The IJ
considered Pinillos-Prieto’s testimony and noted that the two informants had not
contacted him, and that he did not know their whereabouts. The IJ then found that there
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was “insufficient evidence to demonstrate that these individuals are even still interested
in [Pinillos-Prieto] in any way.” Based on that finding, the IJ then concluded that no
“public official would consent or acquiesce to torture or murder of the applicant.”
In Pinillos-Prieto’s administrative appeal, the Board announced that it reviewed
factual findings for clear error and “all other issues, including whether the parties have
met their relevant burden of proof, and issues of discretion, under a de novo standard.”
The Board then stated that the IJ had “properly found” that the two informants’
whereabouts were unknown, that they had not contacted Pinillos-Prieto, and that there
was no evidence that they remained interested in Pinillos-Prieto in any way. The Board
concluded that the IJ was therefore correct to determine that Pinillos-Prieto had not
presented evidence that could show that he would be harmed in any way upon his return
to Colombia, calling Pinillos-Prieto’s testimony “too speculative.”
There is thus no error apparent in the Board’s analysis. It correctly cited its
standard of review and did not improperly treat any legal conclusions as factual
determinations. The conclusion that no government official could be said to acquiesce in
Pinillos-Prieto’s torture, when Pinillos-Prieto had not established that he would be
harmed in the first place, was fully consistent with the applicable legal standards.
Furthermore, there is no indication that the Board ignored any relevant evidence.
Consequently, to the extent that this argument is properly construed as a legal issue over
which we have jurisdiction, it has no merit.

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For these reasons, we will dismiss the petition for review in part for lack of
jurisdiction, and deny it to the extent that it raises a legal issue.1

1

Pinillos-Prieto’s motion to reconsider the Court’s April 28, 2017 order denying his
motion for a stay of removal is denied. For the reasons set forth above, the Court’s prior
order correctly ruled that Pinillos-Prieto’s motion to stay his removal did not raise any
claims subject to our jurisdiction that were likely to succeed on the merits. Moreover, in
light of our disposition of Pinillos-Prieto’s petition for review, any request to reconsider
our prior order is now moot.
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