UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-2420
EDUARDO LEON-SILVA, a/k/a Edward Leon,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: May 14, 2013 Decided: June 13, 2013
Before NIEMEYER, DIAZ, and THACKER, Circuit Judges.
Petition denied in part and dismissed in part by unpublished per
curiam opinion.
Marc Seguinót, SEGUINÓT & ASSOCIATES, P.C., Fairfax, Virginia,
for Petitioner. Stuart F. Delery, Principal Deputy Assistant
Attorney General, Thomas B. Fatouros, Senior Litigation Counsel,
Ann M. Welhaf, Office of Immigration Litigation, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Eduardo Leon-Silva (“Silva”), a native and citizen of
Peru, petitions for review of an order of the Board of
Immigration Appeals (“Board”) dismissing his appeal from the
immigration judge’s order denying his applications for asylum,
withholding of removal and withholding under the Convention
Against Torture (“CAT”). We deny in part and dismiss in part
the petition for review.
Silva is a native and citizen of Peru. He was found
removable for having been convicted of two crimes of moral
turpitude, Immigration and Nationality Act (“INA”)
§ 237(a)(2)(A)(ii). Pursuant to 8 U.S.C. § 1252(a)(2)(C)
(2006), this court lacks jurisdiction to review the final order
of removal of an alien convicted of certain enumerated crimes,
including two or more crimes involving moral turpitude not
arising out of a single scheme of criminal conduct, for which a
sentence of one year or longer may be imposed. See 8 U.S.C.
§ 1227(a)(2)(A)(ii) (2006) (providing that “[a]ny alien who at
any time after admission is convicted of two or more crimes
involving moral turpitude, not arising out of a single scheme of
criminal misconduct . . . is deportable”). The court retains
jurisdiction “to review factual determinations that trigger the
jurisdiction-stripping provision, such as whether [Silva] [i]s
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an alien and whether []he has been convicted of” two or more
crimes involving moral turpitude. Ramtulla v. Ashcroft, 301
F.3d 202, 203 (4th Cir. 2002). Once the court confirms these
two factual determinations, then, under 8 U.S.C.
§ 1252(a)(2)(C), (D), it may only consider “constitutional
claims or questions of law.” 8 U.S.C. § 1252(a)(2)(D) (2006);
see Mbea v. Gonzales, 482 F.3d 276, 278 n.1 (4th Cir. 2007).
Silva does not challenge the factual determinations
that trigger the jurisdiction-stripping provision. Thus, this
court may only consider constitutional claims or questions of
law.
Silva first asserts that he was denied due process
because the Board did not remand the case to the immigration
judge to consider the framework established in Matter of M-A-M-,
25 I. & N. Dec. 474 (BIA 2011), a precedential opinion that set
forth the framework for immigration judges to use when the case
involves an alien suffering from a mental illness. The Board
recognized that the immigration judge’s decision regarding
Silva’s competency was issued before M-A-M-, nevertheless, the
Board found that the immigration judge’s analysis was thoughtful
and consistent with M-A-M-’s holding. The Board also found that
even if there was an indicia of incompetency, there were
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sufficient safeguards in place to enable Silva to participate
meaningfully in the removal proceedings.
In order to establish a due process violation during
removal proceedings, Silva must show “(1) that a defect in the
proceeding rendered it fundamentally unfair and (2) that the
defect prejudiced the outcome of the case.” Anim v. Mukasey,
535 F.3d 243, 256 (4th Cir. 2008). Prejudice is shown if the
defect had an impact on the results of the proceedings. Id.
Silva does not show, much less argue, that he was
prejudiced by the Board’s decision not to remand his removal
proceedings to the immigration judge. Because he fails to show
he was prejudiced, we deny in part the petition for review.
Silva also argues that the evidence established that
he had a well founded fear of persecution sufficient to warrant
withholding of removal and that it was more likely than not that
he will be tortured if returned to Peru, making him eligible for
relief under the CAT. These are clearly factual questions
challenging the weight given the evidence by the immigration
judge and the Board, which we lack jurisdiction to review.
Thus, we dismiss in part the petition for review.
Accordingly, we deny in part and dismiss in part the
petition for review. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
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materials before this court and argument would not aid the
decisional process.
PETITION DENIED IN PART
AND DISMISSED IN PART
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