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April 2, 2015
  Ortiz-Franco v. Holder
Headline: Second Circuit Announces that Jurisdictional Limitations Apply When a Removable Alien Is Denied Deferral of Removal Under the CAT

Area of Law: Immigration Law

Issue(s) Presented: Whether federal circuit courts have jurisdiction to consider the Board of Immigration Appeals' denial of an alien's petition under the Convention Against Torture, when the alien raises no constitutional claims or questions of law.

Brief Summary: Enelison Ortiz-Franco, currently residing in the United States, a native and citizen of El Salvador. He is removable as an alien present in the United States without being admitted or paroled, and also as an alien convicted of a controlled substance violation and a crime of moral turpitude. He applied for asylum, withholding of removal, and deferral of removal under the Convention Against Torture (CAT), contending that if he were removed to El Salvador, he would be tortured and killed by a street gang. The Immigration Judge ruled that his previous convictions rendered him ineligible for asylum and withholding of removal, and that he was not entitled to relief under the CAT. The Board of Immigration Appeals affirmed, and he sought the Second Circuit's review of the CAT denial. The Second Circuit held, however, that it lacked jurisdiction to hear his CAT claim, explaining that when an otherwise removable alien seeks review of his CAT claim, the court's review is limited to questions of law and constitutional claims. The full text of the opinion may be found at:

Extended Summary:

Ortiz-Franco entered the United States illegally in 1987. He was subsequently convicted of criminal possession of a weapon in the third degree, attempted petit larceny, and possession of a controlled substance. In front of the Department of Homeland Security, Ortiz-Franco conceded that he was removable as an alien present in the United States illegally and that, in addition, he was subject to removal as an alien convicted of violating a law related to a federally controlled substance and convicted of a crime involving moral turpitude.

Years later, after joining a MS-13 (a gang) and being indicted on federal charges in connection with a fight with a rival gang, in an unsuccessful effort to enter into a cooperation agreement, Ortiz-Franco made incriminating statements about his co-conspirators. The government gave copies of Ortiz-Franco's statements to his co-defendants. Afterwards, Ortiz-Franco contended that he had concerns about being deported to his native country because of MS-13's perception that he had cooperated with the government.

In his removal hearing, Ortiz-Franco applied for deferral of removal under CAT. The Immigration Judge denied the application, which permitted Ortiz-Franco to be removed, and the Bureau of Immigration Appeals ("BIA") affirmed. In his petition for review to the Second Circuit, Ortiz-Franco argued that the BIA erred in concluding that he did not show the requisite likelihood of torture or that any torture by gang members would occur with the acquiescence of El Salvador.

In analyzing Ortiz-Franco's petition, the Second Circuit noted that, in similar situations, it has assumed that its review is limited to questions of law and constitutional claims and, in the narrowest of circumstances, has relied on "hypothetical" jurisdiction. In this case, for the first time, the Second Circuit considered the issue and, joining the Fifth, Third, Eighth, Fourth, Eleventh, and Sixth Circuits, held that when an alien who is otherwise removable due to the commission of a covered criminal offense seeks deferral of removal under the CAT, appellate jurisdiction is limited to review of constitutional claims and questions of law. The court recognized that, in the exact situation, the Seventh and Ninth Circuits would find jurisdiction.

The court rooted its analysis in a statutory discussion. Beginning with the CAT itself, the court noted that, because the CAT is not self-executing, it confers no judicially enforceable right on individuals. Instead, Congress implemented the CAT by passing the Foreign Affairs Reform and Restructuring Act of 1998 ("FARRA") and directing the executive to promulgate regulations. In addition, CAT has nothing to say about the scope of judicial review of a right defined by statute or the implementing regulations. Instead, Congress has said courts may consider or review claims under the CAT only when they are part of the review of a final order of removal.

As a further limitation, when the petitioner is removable by reason of having committed a covered criminal offense, courts may only review constitutional claims or questions of law. Because review of deferral claims is part of the review of a final order of removal, the scope of deferral review is limited as well. Acknowledging Ortiz-Franco's arguments, and the Fifth and Seventh Circuits position regarding the finality of deferral decisions, the Second Circuit remained unpersuaded. According to its analysis, the court does not have unlimited jurisdiction over CAT claims and Congress intended to limit the courts' ability to review CAT decision. Agreeing with the majority of circuit courts that have considered the issue, the Second Circuit concluded that the denial of deferral should be treated as final and reviewable. Denial of deferral means that a removal order may be immediately carried out and this conclusion accords with the presumption of judicial review of administrative action.

In conclusion, "once [the court is] satisfied that a given alien has been found 'removable by reason of' conviction of a crime covered [by the CAT]..., [it] lack jurisdiction to conduct further review of the 'final order of removal,' whether relating to asylum, withholding of removal, or CAT relief," except to the extent the alien raises constitutional claims or questions of law. [Citations omitted]. Here, because Ortiz-Franco did not raise any constitutional claims or questions of law, and instead disputed the correctness of the IJ's fact-finding, the court dismissed the petition for review for lack of jurisdiction. Concurring, in the interests of uniformity, Judge Lohier prompted Congress or the Supreme Court to decide the circuit split.

Panel (if known): Judges Jacobs, Lohier, and Droney

Argument Date: 10/09/2014

Date of Issued Opinion: 04/01/2015

Docket Number: 13-3610

Decided: Petition Denied.

Case Alert Author: Samantha Kopf

Counsel: Lee P. Gelernt, American Civil Liberties Foundation, Immigrants' Rights Project (with Dror Ladin, American Civil Liberties Foundation, Immigrants' Rights Project and Genet Getachew, Law Office of Genet Getachew), New York, N.Y., for Petitioner; Jesse M. Bless, Trial Attorney, United States Department of Justice, Civil Division, Office of Immigration Litigation (with David B. Bernal, Director, Stuart F. Delery, Acting Associate Attorney General and Anthony C. Payne, Senior Litigation Counsel), Washington, D.C., for Respondent.

Author of Opinion: Judge Jacobs

2nd Circuit

Case Alert Circuit Supervisor:
Emily Waldman

    Posted By: Emily Waldman @ 04/02/2015 04:12 PM     2nd Circuit  

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