NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 12-1957
___________
JOSE LUIS VASQUEZ,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A042-889-147)
Immigration Judge: Honorable Walter A. Durling
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 23, 2013
Before: FUENTES, HARDIMAN AND VAN ANTWERPEN, Circuit Judges
(Opinion filed February 4, 2013)
_________
OPINION
_________
PER CURIAM
Petitioner Jose Luis Vasquez, a citizen of the Dominican Republic who is present
in the United States as a lawful permanent resident, seeks review of a Board of
Immigration Appeals (BIA) order denying relief from removal and declining to reopen
the evidentiary record. We will dismiss in part and deny in part his petition for review.
After pleading guilty in 2009 to one count of trafficking a Mercedes Benz with an
altered Vehicle Identification Number (in violation of 18 U.S.C. § 2321, see S.D.N.Y.
Crim. No. 1:08-cr-00988), Vasquez was placed into deportation proceedings. One basis
for his removal was the aforementioned conviction, which rendered him an aggravated
felon under the Immigration and Nationality Act. See Administrative Record (A.R.) 707
(citing 8 U.S.C. §§ 1101(a)(43)(R) and 1227(a)(2)(A)(iii)). Vasquez sought withholding
of removal relief (―withholding‖) and protection under the United Nations Convention
Against Torture (―CAT‖). He claimed to fear retribution from the co-defendants in his
federal case, who had close ties with the ―Trinitarios‖ gang and—based on their belief
that he cooperated with the United States Government—threatened him with harm should
he ever return to the Dominican Republic.1
Vasquez‘s applications for relief were unsuccessful. While concluding that
Vasquez and his girlfriend had testified credibly, an Immigration Judge (IJ) nevertheless
determined that 1) the mistreatment feared by Vasquez was not on account of his
membership in a ―social group‖ as defined in 8 U.S.C. § 1231(b)(3)(A); and 2) while the
Dominican government was ―rife with corruption problems . . . [the record] is wholly
lacking . . . i[n] any corroboration that the government of the Dominican Republic is
somehow influenced or infiltrated by the Trinitarios gang‖ and would therefore be
―unable to unwilling to prevent‖ harm to Vasquez. A.R. 139–42. The IJ also found ―no
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evidence that the government would likely torture [Vasquez] upon his return‖ to the
country, or would otherwise acquiesce or be willfully blind to torture by others. A.R.
143–45. Vasquez sought review from the BIA, and also submitted a motion to
remand/reopen the record for ―consideration of new, previously unavailable evidence.‖
A.R. 23. The BIA affirmed, and declined to reopen the record because the new
documents were ―cumulative of evidence previously submitted‖ or otherwise had ―little
evidentiary value.‖ A.R. 8–10. Vasquez filed a timely petition for review with this
Court.
Because Vasquez was charged with removability under 8 U.S.C.
§ 1227(a)(2)(A)(iii), the jurisdiction-stripping provisions of 8 U.S.C. § 1252(a)(2)(C)
limit our review to ―constitutional claims or questions of law.‖ 8 U.S.C. § 1252(a)(2)(D);
Roye v. Att‘y Gen., 693 F.3d 333, 339 (3d Cir. 2012). The former must be ―colorable
violations of the United States Constitution,‖ while the latter must present ―purely legal
inquiries such as those involved in statutory interpretation‖; both are reviewed de novo,
subject to applicable principles of deference. Roye, 693 F.3d at 339 (citations, quotations
omitted). ―[F]actual or discretionary determinations‖ are ―outside of our scope of
review.‖ Id. To the extent that we do have jurisdiction, because the BIA‘s decision
adopted and expanded upon the IJ‘s decision, we may review both. Chen v. Ashcroft,
376 F.3d 215, 222 (3d Cir. 2004).
Vasquez‘s arguments are hobbled by our circumscribed jurisdiction. He contends
1
Because we write primarily for the parties, and due to the circumscribed nature of our
review (see infra), we will forgo an extended summary of the facts of the case and
3
at length that the agency erred by determining that he did not belong to a cognizable
social group: one consisting of perceived informants who have testified against the
interests of Dominican gang members and their associates. ―Whether a[] [petitioner‘s]
proffered ‗particular social group‘ is cognizable . . . is a question of law,‖ and would
ordinarily be reviewable. Gomez-Zuluaga v. Att‘y Gen., 527 F.3d 330, 339 (3d Cir.
2008). But the agency also found 1) that the Dominican government has no interest in
Vasquez beyond his status as a deportee, and 2) that Vasquez had not established that the
government would be unable or unwilling to control his alleged persecutors, thus failing
to meet the burden of proof for withholding relief. See A.R. 3–4, 141–42. These are
issues of fact, not law. See Fiadjoe v. Att‘y Gen., 411 F.3d 135, 153 (3d Cir. 2005); see
also Ghebrehiwot v. Att‘y Gen., 467 F.3d 344, 351 (3d Cir. 2006) (explaining
withholding standard). Even if the agency‘s social-group analysis were erroneous, its
secondary, factual holding would defeat Vasquez‘s applications for relief. Thus, while
we can reach the legal issue, we must deny the petition as to this claim because we are
bound by the agency‘s factual determination. The CAT claim, which was denied by the
agency on substantially similar grounds, suffers from the same deficiencies (e.g., the
petitioner argues that ―the available evidence is clear that the Dominican government is
aware of the torture occurring in the country against individuals similarly situated to
[him]‖—a clear request to review the factual record, which we cannot do) and will also
Vasquez‘s alternative bases for relief.
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be denied.2
Vasquez also argues that the BIA erred in denying his motion to remand and
reopen proceedings. ―The BIA treats a motion to remand for the purpose of submitting
additional evidence in the same manner as motions to reopen the record.‖ Huang v. Att‘y
Gen., 620 F.3d 372, 389 (3d Cir. 2010) (citing 8 C.F.R. § 1003.2(c)(4); In re Coelho, 20
I. & N. Dec. 464, 471 (B.I.A. 1992)). When, as here, the BIA declines to open on the
grounds that the new proffer is cumulative or otherwise would not nudge the petitioner
from failure to success, we ordinarily review for abuse of discretion. Id. at 389–90.
However, as was the case above, we are limited in present circumstances to questions of
law and constitutional claims. Cf. Hanan v. Mukasey, 519 F.3d 760, 763 (8th Cir. 2008).
―Garden-variety allegations of factual error such as those presented here‖ cannot suffice
2
In his brief, Vasquez attacks the agency‘s burden-of-proof determination, suggesting
that it erred by requiring corroboration of his credible testimony; ―[the agency] was
required to explain why it believed that the evidence it demanded was reasonably
available to the Petitioner to obtain,‖ but ―[n]o such assertion was made.‖ Pet‘r‘s Br. 14.
A similar invocation was made during the administrative appeal, see A.R. 116, although
the BIA did not address the matter in its opinion. Vasquez‘s ―passing reference‖ to this
question does not clarify upon what grounds he might wish to challenge the agency‘s
decision, and whether (in turn) those grounds are rooted in fact or law—whether, for
example, he wishes to allege that the process used in requiring collaboration was in some
way faulty. Hence, we deem the matter to be waived. See Laborers‘ Int‘l Union v.
Foster Wheeler Corp., 26 F.3d 375, 398 (3d Cir. 1994); see also 8 U.S.C. § 1252(b)(4)
(―No court shall reverse a determination made by a trier of fact with respect to the
availability of corroborating evidence . . . unless the court finds . . . that a reasonable trier
of fact is compelled to conclude that such corroborating evidence is unavailable.‖);
Sandie v. Att‘y Gen., 562 F.3d 246, 252 n.2 (3d Cir. 2009) (explaining the corroboration
mechanism of the REAL ID Act, which applies to this petition).
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to grant us jurisdiction. Jarbough v. Att‘y Gen., 483 F.3d 184, 190 (3d Cir. 2007).3
Accordingly, for the foregoing reasons, we will dismiss the petition for review in
part and deny it in part.
3
Because we have seen this mistake in several recent cases, we wish to point out that part
of the BIA‘s opinion was slightly in error. The BIA held, in part, that an affidavit from
one Sergio Mendez ―had not been authenticated pursuant to 8 C.F.R. § 1287.6(b)‖, A.R.
4; however, that regulation only pertains to ―official records.‖ Lin v. Att‘y Gen., 700
F.3d 683, 686–87 (3d Cir. 2012). As the agency articulated other reasons for rejecting or
otherwise limiting its reliance on the affidavit, this error is harmless.
6