21-6475
Rauda v. Garland
BIA
Driscoll, IJ
A041 713 664
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION
TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED
AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS
COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX
OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A
PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY
NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 2nd day of March, two thousand twenty-two.
5
6 PRESENT:
7 DENNIS JACOBS,
8 GUIDO CALABRESI,
9 RICHARD J. SULLIVAN,
10 Circuit Judges.
11 _____________________________________
12
13 OSCAR FRANCISCO RAUDA,
14 Petitioner,
15
16 v. No. 21-6475
17 NAC
18 MERRICK B. GARLAND, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
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1 FOR PETITIONER: Oscar Francisco Rauda, Pro Se.
2
3 FOR RESPONDENT: Brian Boynton, Acting Assistant
4 Attorney General, Margaret Kuehne
5 Taylor, Senior Litigation Counsel,
6 and Rodolfo D. Saenz, Trial
7 Attorney, Office of Immigration
8 Litigation, United States
9 Department of Justice, Washington,
10 DC.
11 Petitioner Oscar Francisco Rauda, pro se, moves for leave
12 to proceed in forma pauperis (“IFP”), appointment of counsel,
13 and a stay of removal in connection with his petition for
14 review of a decision of the Board of Immigration Appeals
15 (“BIA”) affirming a decision of an immigration judge (“IJ”)
16 ordering his removal from the United States and denying all
17 ancillary requested relief. In re Oscar Francisco Rauda, No.
18 A041 713 664 (B.I.A. Aug. 12, 2021), aff’g No. A041 713 664
19 (Immig. Ct. Mar. 29, 2021).
20 UPON DUE CONSIDERATION, it is hereby ORDERED that the
21 IFP motion is DENIED and the petition is DISMISSED because it
22 “lacks an arguable basis either in law or in fact.” Neitzke
23 v. Williams, 490 U.S. 319, 325 (1989); see also 28 U.S.C.
24 § 1915(e)(2)(B).
25 In 2020, Rauda, a native and citizen of El Salvador, was
26 placed in removal proceedings for (1) a 2006 conviction in
2
1 Massachusetts for violating an order of protection and (2) a
2 2019 conviction of indecent assault and battery on a child
3 under Massachusetts General Law § 265.13B. Rauda then
4 applied for withholding of removal and relief under the
5 Convention Against Torture (“CAT”).
6 Following a hearing at which Rauda testified, the IJ
7 denied all requested relief. The IJ found that Rauda was
8 deportable as charged, based in part on his 2006 conviction
9 for violating an order of protection. The IJ also held that
10 Rauda’s 2019 conviction was a particularly serious crime
11 based on the circumstances of the offense. On these grounds,
12 the IJ barred withholding of removal. See 8 U.S.C.
13 §§ 1227(a)(2)(E), 1231(b)(3)(B)(ii). Additionally, the IJ
14 concluded, in light of Rauda’s concession that he had not
15 been tortured in the past and because his purported fears of
16 relocating to El Salvador were speculative, that Rauda had
17 failed to meet his burden of proof with respect to the CAT
18 claim. See 8 C.F.R. §§ 1208.16(c)(2), 1208.17(a). On appeal
19 to the BIA, Rauda maintained that his 2019 felony conviction
20 was not an aggravated felony or a particularly serious crime,
21 and that the IJ erred in denying him CAT relief. The BIA
3
1 rejected these arguments and affirmed the IJ’s decision.
2 Rauda timely petitioned for review of the agency’s
3 decision. And in connection with his petition, he moves,
4 inter alia, for IFP status, appointment of counsel, and a
5 stay of removal. Because Rauda is proceeding pro se, we
6 construe his submissions solicitously. See Triestman v. Fed.
7 Bureau of Prisons, 470 F.3d 471, 474–75 (2d Cir. 2006).
8 Under the IFP statute, we must dismiss the petitioner’s
9 appeal if the petition “lacks an arguable basis either in law
10 or in fact,” Neitzke, 490 U.S. at 325. Because Rauda’s 2006
11 conviction for violating an order of protection is an
12 independently sufficient ground for removal from the United
13 States, see 8 U.S.C. § 1227(a)(2)(E), Rauda’s petition for
14 withholding of removal must be dismissed.
15 We also conclude, for the reasons cited by the BIA, that
16 Rauda’s CAT claim lacks merit. See Nasrallah v. Barr, 140
17 S. Ct. 1683, 1690–94 (2020) (appellate review of CAT relief
18 denial is for substantial evidence). Simply put, the record
19 before us does not demonstrate that Rauda is “more likely
20 than not” to be subjected to torture upon return to El
21 Salvador. See 8 C.F.R. §§ 1208.16(c)(2), 1208.17(a).
4
1 We have considered Rauda’s remaining arguments and find
2 them to be without merit. Accordingly, the petition for
3 review is DISMISSED, and all pending motions and applications
4 are DENIED and stays VACATED.
5 FOR THE COURT:
6 Catherine O’Hagan Wolfe,
7 Clerk of Court
5