Opposition Brief — Rangololan v. Mukasey (No. 07-1169)

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No. 07-1169 ae

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In the Supreme Court of the Unites Blakes™"*

PAUL ANTHONY RANGOLAN, PETITIONER

Vv.

MICHAEL B. MUKASEY, ATTORNEY GENERAL

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

PAUL D. CLEMENT

Solicitor General

Counsel of Record

GREGORY G. KATSAS

Acting Assistant Attorney

General

DONALD E. KEENER

ROBERT N. MARKLE

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

wee ee 46 Wee ... - -

QUESTIONS PRESENTED

1. Whether the court of appeals erred in denying

petitioner’s motion for a stay of removal.

2. Whether the court of appeals erred in holding

that it lacked jurisdiction to review the Board of Immi-

gration Appeals’ denial of petitioner’s request for

deferral of removal under the Convention Against Tor-

ture. :

(I)

TABLE OF CONTENTS

Page

EN Sh dc dius vs oe Saw enn dead cede so enneeeertn 1

Jurisdiction........... OLS OE SE OE OY ETP e Te ie Fee oo 1

aS Ss sods vba e nwa dp de suas ok ak hea

ea ct bb ened in ke eee aCe Kae Shee Oee Ree 8

NC oh ini ony up chia mien aaa w a aKa heewe 20

TABLE OF AUTHORITIES

Cases: |

Andreiu v. Ashcroft, 253 F.3d 477 (9th Cir. 2001) ....... 10

Arevalo v. Ashcroft, 344 F.3d 1 (1st Cir. 2003) .......... 10

Bejjani v. INS, 271 F.3d 670 (6th Cir. 2001),

abrogated on other grounds by Fernandez-Vargas

:-v. Gonzales, 548 U.S..30 (2006). ... 2.2... eee eee. 10

Belortaja v. Gonzales, 484 F.3d 619 (2d Cir. 2007) ...... 12

Boakai v. Gonzales, 447 F.3d 1 (1st Cir. 2006)... 2.2... 17

Chen v. Department of Justice, 471 F.3d 315 (2d Cir.

DE feu Gs Fis uG ad pon peReeS Naas bie Mia daa s 19

Douglas v. Ashcroft, 374 F.3d 230 (8d Cir. 2004) ........ 10

Fernandez-Vargas v. Gonzales, 548 U.S. 30, 126 S. Ct.

| Riper re Sip rat Ae i Pet ey Sr mertAr pt 2

Hamid v. Gonzales, 417 F.3d 642 (7th Cir. 2005) ....... 18

Hanah v. Gonzales, 449 F.3d 834 (8th Cir. 2006) ....... 18

Hor v. Gonzales, 400 F.3d 482 (7th Cir. 2005) .......... 10

INS vy. Elias-Zacarias, 502 U.S. 478 (1992) ............ 20

Jean-Pierre v. Attorney Gen., 500 F.3d 1315 (11th

DRED. 6 c's be sb und 0 a Sakadcen we aawe es Caled . 19

Joseph v. Blair, 488 F.2d 403 (4th Cir. 1973), cert.

denied, 416 U.S. 955 (1974) 2.2.0... cee eee eee ee 16

(111)

Cases—Continued: Page

Kamara v. Attorney Gen., 420 F.3d 202 (3d Cir.

eS Cee emer eee Oe

Kenyeres v. Ashcroft, 538 U.S. 1301 (2003) ............ 12

Landon v. Plasencia, 459 U.S. 21 (1982) .............. 13

Lim v. Ashcroft, 375 F.3d 1011 (10th Cir. 2004) ........ 10

M-B-A-, In re, 23 I. & N. Dee. 474 (B.I.A. 2002) ..... 12,17

Mbea v. Gonzales, 482 F.2d 276 (4th Cir. 2007) ......... 14

Mohammed v. Reno, 309 F.3d 95 (2d Cir. 2002) ........ 10

Ngarurih v. Ashcroft, 371 F.3d 182 (4th Cir. 2004) ....... 2

Obale v. Attorney Gen., 453 F.3d 151 (3d Cir. 2006) ..... 13

Ogbudimkpa v. Ashcroft, 342 F.2d 207 (3d Cir. 2003) ... 19

Real Estate Title & Settlement Servs. Antitrust

Litig., In re, 869 F.2d 760 (3d Cir.), cert. denied,

ae ee ee ok wis Sek cheketschces 18

Reno v. American-Arab Anti-Discrimination

CEE See Ba Ee GUD id ono bxek ce vedaeaecea 10

Singh v. Ashcroft, 351 F.3d 435 (9th Cir. 2003) ......... 19

Sofinet v. INS, 188 F.3d 703 (7th Cir. 1999) ............ 13

Stone v. INS, 514 U.S. 386 (1995) ......... cece cece eee 2

Tesfamichael v. Gonzales, 411 F.3d 169 (5th Cir.

2005), cert. denied, 128 S. Ct. 353 (2007) ......... 10, 11

Torres de la Cruz v. Maurer, 483 F.3d 1013 (10th Cir.

5 SRR Rap ep empce re mr oe a retinc, (67a eke arene 15

Toussaint v. Attorney Gen., 455 F.3d 409 (3d Cir.

EE cxvb ov aks ab ada hawt koie newb ckane een tee eeee 19

Tun v. Gonzales, 484 F.3d 1014 (8th Cir. 2007) ......... 17

Cases—Continued: : | Page

United States v. Williams, 504 U:S. 36 (1992) ....... 15, 17

Weng v. United States Att’ y Gen., 287 F.3d 1385 sae

Ge EE rs os oak Sateen ee eee oa kee Bhasin gas 10

Treaty, statutes and regulations:

- United Nations Convention Against Torture and

. Other Cruel, Inhuman or Degrading Treatment or

Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85 ......... 5

Illegal Immigration Reform and Immigrant

Responsibility Act of 1996, Pub. L. No. 104-208,

DORR A Si es I oa bie atk ccc ccesacecees ie

§ 305(a)(3), 110 Stat: 3009- ee EMS 2

§ 306(a)(2), 110 Stat. 3009-608 ................ eee.

§ S060), 110 Sint: 2009-612 .... .. - 2... 5.65 6...5.. 2

Immigration and Nationality Act, 8 U.S.C. 1101. |

BPO eer Sa DIP aan Peer rere rere 2

& U.S.C. 1105a(c) (1994) ..........2... he Sule ee 2

BTEC, TAIN ok ccc ec cn ccs ecucsss 5

SUS.C. NSBIGNENG) .............05. veuaianans 5

RU SNS onc cccccc ccc cceceacsuas 4

BU FAD) «ws on cece ce cn 3,7

cnc cas sncascscudckes 5

STIBC Ie) ............... piles scat 2,14

Ue IS oan viv dc bn iv nae oceaknes 6

SUR 2. osc... PIU sane

Statutes and regulations—Continued: Page

SB UBC. TEAS) onc ccccces Se ee oreTe 19

8 U.S.C. 1252(a)(2)(C) (Supp. V 2005) ....... 8,7, 14

8 U.S.C. 1252(a)(2)(D) (Supp. V

Be eae sek bkscbescscsceaste passim

UG SD) oo. o.oo. oc ew es teaeae 2

i ETD ecg acc vccccsesdsececescds 19

EE ies Se dd ace ncnckcseeuan passine

8-U.S.C. 1826(a) ......... Mca kaise aiasiabaoua aan 5

ls oi se ch daha y Daeeennenn 5

REAL ID Act of 2005, Pub. L. No. 109-13, Div. B,

; ee ee, Bee eet. BID oi ce cc ccnnene 3

is ys hain cdacesssesuncdnneban 4

OMEMMN SG cS bac odne bu o's o's ean teint kent Pree 4

ge Ta 8 6s a a er ae ae 5

8 C.F.R.:

Section 1003.1(e)(6)(v) .............0-. ‘ismiatada ae 17

PE I iio np dice cacuccccctcscesssawewes 6

EN oi ec nc cece ececccessncscccenna wen 6

ooo eB i? | a Pi 5

Miscellaneous:

Black’s Law Dictionary: |

cc kay nacen cas endessoedweeh 10

(7th ed. 1999) ............ Sivigx tree eitxa os come 10

H.R. Conf. Rep. No. 72, 109th Cong., Ist Sess. (2005) ... 16

S. Rep. No. 249, 104th Cong., 2d Sess. (1996) .......... 10

In the Supreme Court of the Gnited States

No. 07-1169

PAUL ANTHONY RANGOLAN, PETITIONER

} Vv.

MICHAEL B. MUKASEY, ATTORNEY GENERAL

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-2) is

unreported. The opinions of the Board of Immigration

Appeals (Pet. App. 3-6) and the immigration judge (Pet.

App. 7-16) are unreported.

JURISDICTION

The judgment of the court of appeals was entered on

October 23, 2007. A petition for rehearing was denied on

November 21, 2007 (Pet. App. 17). On February 13,

2008, the Chief Justice extended the time within which

to file a petition for a writ of certiorari to and including

March 11, 2008, and the petition was filed on that date.

Petitioner improperly invokes this Court’s jurisdiction

under 8 U.S.C. 1252(a)(1), but this Court’s jurisdiction

is properly invoked under 28 U.S.C. 1254(1).

(1)

STATEMENT

1. In 1996, Congress amended the Immigration and

Nationality Act (INA), 8 U.S.C. 1101 et seq., to expedite

the removal of criminal and other illegal aliens from the

United States. See Illegal Immigration Reform and

Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L.

No. 104-208, Div. C, 110 Stat. 3009-546. Four amend-

ments to the INA are particularly relevant here.

First, Congress streamlined the removal of aliens

who illegally reenter the United States after being de-

ported or removed by authorizing the reinstatement of

an earlier removal order without the need for additional

administrative proceedings. See IIRIRA § 305(a)(3),

110 Stat. 3009-599 (codified at 8 U.S.C. 1231(a)(5)). As

a result, when an alien who has previously been removed

or who departed voluntarily under an order of removal

illegally reenters the United States, the Department of

Homeland Security (DHS) may simply execute the prior

order again. See Fernandez-Vargas v. Gonzales, 548

U.S. 30 (2006).

Second, Congress eliminated the provision of the

INA that automatically stayed the enforcement of a re-

moval order upon the filing of a petition for review in a

court of appeals, providing instead that the court may

issue a discretionary stay of removal during the pen-

dency of a judicial review proceeding on a case-by-

case basis. See IIRIRA § 306(a)(2), 110 Stat. 3009-608

.codified at 8 U.S.C. 1252(b)(3)(B)). Congress also en-

sured that, if an alien is removed while his petition for

review is pending, removal from the United States does

not divest the court of jurisdiction it otherwise pos-

sesses. ITRIRA § 306(b), 110 Stat. 3009-612 (repealing

8 U.S.C. 1105a(c) (1994)); see, e.g., Ngarurih v. Ashcroft,

371 F.3d 182, 192 (4th Cir. 2004); see also Stone v. INS,

514 U.S. 386, 398-399 (1995) (discussing pre-IIRIRA

INA provisions governing stays and barring judicial

review once an alien has been deported).

Third, Congress provided a statutory standard for

when the federal courts may enjoin execution of removal

orders. The INA now provides that “no court shall en-

join the removal of any alien pursuant to a final order

under [8 U.S.C. 1252] unless the alien shows by clear

and convincing evidence that the entry or execution of

such order is prohibited as a matter of law.” 8 U.S.C.

1252(f)(2).

Finally, Congress restricted federal-court review of

final orders of removal entered against criminal aliens.

The INA now provides, in pertinent part:

[N]o court shall have jurisdiction to review any final

order of removal against an alien who is removable

by reason of having committed a criminal offense

covered in section [1182(a)(2) or 1227(a)(2)(A)(iil),

(B), (C), or (D)].

8 U.S.C. 1252(a)(2)(C).’ In 2005, Congress qualified this

jurisdictional bar by providing:

Nothing in subparagraph (B) or (C), or in any other

provision of this Chapter (other than this section)

which limits or eliminates judicial review, shall be

construed as precluding review of constitutional

claims or questions of law raised upon a petition for

review filed with an appropriate court of appeals in

accordance with this section.

8 U.S.C. 1252(a)(2)(D), as added by the REAL ID Act of |

2005, Pub. L. No. 109-13, Div. B, § 106(a)(1)(A)(iii), 119

Stat. 310.

' All references to 8 U.S.C. 1252(a)(2(C) and (D) are to the 2005

Supplement.

2. Petitioner, a native and citizen of Jamaica, was

admitted to the United States in 1987 as a lawful perma-

nent resident. A.R. 2, 299-301, 470-471. He has a

lengthy criminal] history in the United States. He was

arrested in 1987 for theft; in 1994 for unlawful entry,

assault with a dangerous weapon, and theft; and in 1995

for receiving stolen property; and a warrant was issued

for his arrest for retail theft in 2001. A.R. 231, 298-299.

Petit: oner also frequently used aliases and changed his

vehicle registration to evade law enforcement authori-

ties. Pet. App. 14; A.R. 232.

Petitioner also was convicted of two federal crimes.

In March 1990, he was convicted of embezzlement by a

bank employee, in violation of 18 U.S.C. 656, and was

sentenced to five years of probation. A.R. 296-297. In

February 1997, he was convicted of conspiracy to file

false tax returns, in violation of 18 U.S.C. 286, and was

sentenced to one year and one day of imprisonment and

two years of supervised release. A.R. 293, 296-298.

Petitioner was placed in removal proceedings in 1998

and charged with being removable pursuant to 8 U.S.C.

1227(a)(2)(A)(ii) for committing two crimes of moral tur-

pitude and pursuant to 8 U.S.C. 1227(a)(2)(A)(iii) for

committing an aggravated felony. A.R. 293; Gov’t C.A.

Mot. to Dismiss 2-3. An immigration judge (IJ) found

petitioner removable as charged, and petitioner was re-

moved from the United States in January 1999 and was

informed that he could not apply for readmission to the

United States without the Attorney General’s approval.

A.R. 293-294.

Two months later, petitioner illegally reentered the

United States. A.R. 196, 239, 294. Petitioner continued

to engage in criminal activity. In 2003, he regularly pur-

chased large quantities of marijuana, which he provided

to guests at his home. A.R. 229, 294: In June 2004,

agents of Immigration and Customs Enforcement (ICE)

in the Department of Homeland Security who were exe-

cuting a search warrant at petitioner’s residence discov-

ered approximately one kilogram of marijuana, a .45

caliber semi-automatic pistol, a shotgun, assault rifles,

three handguns, and approximately $4,280 in cash. Pet.

App. 14; A.R. 294-295. Petitioner pleaded guilty to us-

ing, carrying, and possessing a firearm during a drug

trafficking offense, in violation of 18 U.S.C. 924(c)(1)(A),

and to illegal reentry following removal, in violation

of 8 U.S.C. 1326(a) and (b)(2), and was sentenced to

twenty-seven months of imprisonment. A.R. 235,

293-294. , : |

ICE determined that petitioner was subject to re- .

moval through reinstatement of his prior removal order.

See 8 U.S.C. 1231(a)(5). Petitioner sought relief from

removal in the form of withholding of removal under 8

U.S.C. 1231 or withholding or deferral of removal under

the United Nations Convention Against Torture and

Other Cruel and Degrading Treatment or Punishment

(CAT), Dec. 10, 1984, 1465 U.N.T.S. 85. A.R. 451-455.

Petitioner contended that he would be persecuted and/or

tortured on account of his sexual orientation and his

HIV-positive status if removed to Jamaica. Pet. App. 3-

4. Because petitioner asserted a fear of persecution and

torture in Jamaica, his case was referred to an IJ. A.R.

451-452; see 8 C.F.R. 1238.1(f)(3).

3. Before the IJ, petitioner conceded that he was

ineligible for asylum because he had been convicted of

an aggravated felony. Pet. App. 8; see 8 U.S.C.

1158(b)(2)(A)(ii) and (B)(i). The IJ denied withholding

of removal under 8 U.S.C. 1231 and the CAT, but

granted deferral of removal under the CAT. Pet. App.

7-16. The IJ first found that petitioner is ineligible for

withholding of removal under both 8 U.S.C. 1231 and the

CAT because he had been convicted of a particularly

serious crime (his drug trafficking offense) and his prior

crimes and his large firearms collection-‘make him a dan-

ger to the community. Pet. App. 13-14; see 8 U.S.C.

1231(b)(3)(B); 8 C.F.R. 1208.16(d)(2).

The IJ then determined that petitioner is eligible for

deferral of removal under the CAT. Pet. App. 14-16; see

8 C.F.R. 1208.17. The IJ found that petitioner is a ho-

mosexual; that petitioner was previously “chased and

beaten by an antihomosexual mob” in Jamaica; that Ja-

maican law criminalizes “any kind of physical intimacy

between men in public or in private”; and that there is

“physical abuse of prisoners by guards” in Jamaican

prisons. Pet. App. 15-16. The IJ then concluded that, if

petitioner was returned to Jamaica, “it would be more

likely than not based upon his history * * * that he

would commit homosexual acts and would be subject to

imprisonment for th{ose] act{s] and tortured.” Jd. at 16.

4. The Board of Immigration Appeals (BIA) vacated

the IJ’s grant of deferral of removal under the CAT and

ordered petitioner removed to Jamaica. Pet. App. 3-6.

It found that the IJ’s conclusion that petitioner would be

tortured if removed to Jamaica “is based on a series of

unsupported suppositions” and that “the record does not

establish that it is more likely than not that any torture

[petitioner] may suffer in Jamaica would be by or at the

acquiescence of the government.” /d. at 4.. The BIA

acknowledged that Jamaican law does “prohibit{] acts of

physical intimacy between men,” but it determined that

because “there is little evidence” regarding “the extent

to which this law is enforced,” the IJ erred in concluding

that petitioner would likely be arrested and prosecuted

for being a homosexual. /d. a* 4-5.

Further, the BIA found that “the record does not

establish that it is more likely than not that, if arrested

and imprisoned, [petitioner] would be tortured by or at

the acquiescence of the Jamaican government,” Pet.

App. 5 (emphasis added), a necessary showing for CAT

protection. The BIA noted that Jamaican law prohibits

torture; that the Jamaican government “ha[s] made ef-

forts to remove abusive guards and improve prison pro-

cedures”; that the Jamaican government has “generally

cooperated with human rights and other groups who

monitored the prisons”; that the Jamaican government

has investigated and prosecuted incidents of violence

against homosexuals; and that the Jamaican government .

is “working to reduce the stigma of HIV/AIDS.” Id. at

5-6. Accordingly, the BIA found that the IJ erred in

finding government acquiescence because the Jamaican

government has not “instigated or been willfully blind to

the violence aimed at homosexuals.” Jd. at 6.

5. Petitioner filed a petition for review in the court

of appeals and sought a stay of removal while his peti-

tion was pending. The government moved to dismiss the

petition for review under 8 U.S.C. 1252(a)(2)(C) because

petitioner is removable by reason of his aggravated fel-

ony conviction. See Gov’t C.A. Mot. to Dismiss 5-7; see

also 8 U.S.C. 1227(a)(2)(A)(iii). The government ac-

knowledged that, notwithstanding the jurisdictional bar

in 8 U.S.C. 1252(a)(2)(C) to review of removal orders

entered against aggravated felons, the court of appeals

had jurisdiction to consider “constitutional claims or

questions of iaw” under 8 U.S.C. 1252(a)(2)(D). But the

government explained that petitioner’s fact-bound chal-

lenge to the BIA’s denial of deferral of removal under

the CAT did not present any such questions. Gov’t C.A.

Mot. to Dismiss 8. The government also opposed the

motion for a stay, arguing that petitioner did not qualify

under either the standard set forth in 8 U.S.C. 1252(f)(2)

or under the traditional standard for preliminary injunc-

tive relief. Jd. at 8-16.

The court of appeals granted the government’s mo-

tion to dismiss and denied petitioner’s motion for a stay

in a brief, unpublished order. Pet. App. 1-2. Judge

Gregory noted his dissent from the order. /bid. A peti-

tion for rehearing was denied by the same vote, and re-

hearing en bane was denied because no poll of the judges

was requested. /d. at 17.

6. Petitioner applied to the Chief Justice for a stay

of removal pending the resolution of his certiorari peti-

tion and the Chief Justice denied the application. No.

07A430 (Dec. 14, 2007). Petitioner re-filed the stay ap-

plication with Justice Kennedy, who referred it to the

Court, and the Court denied the application on February

19, 2008.

ARGUMENT

Petitioner contends (Pet. 10-19) that the court of ap-

peals erred in denying his application for a stay of re-

moval] and.dismissing his petition for review. The court

of appeals correctly denied petitioner’s stay request,

because petitioner could not satisfy either the 8 U.S.C.

1252(f)(2) standard or the traditional standard for

granting a preliminary injunction, which in turn has

been applied to the granting of a stay. The court of ap-

peals also correctly dismissed the petition for review,

because petitioner’s fact-bound claim does not raise a

“question[] of law” over which the court of appeals re-

tained jurisdiction under 8 U.S.C. 1252(a)(2)(D). The

court of appeals’ brief, unpub:ished order does not con-

flict with any decision of this Court or any other court of

appeals. Moreover, because the unpublished order does

not establish circuit precedent, it would not in any event

give rise to the sort of conflict between precedential de-

cisions of courts of appeals that would warrant this

Court’s review. And the fact that the court of appeals

did not set forth its reasoning in its order makes this

ease a particularly inappropriate candidate to review the

questions presented. Accordingly, the petition should be

denied. Indeed, the Chief Justice and then the full

Court have already denied petitioner’s application for a

stay of removal, which raised the same arguments.

There is no reason for a different disposition of the cer-

tiorari petition itself.

1. Petitioner first contends (Pet. 10-12) that review

is warranted because the courts of appeals disagree

about the standard for determining when to issue a stay

of removal pending resolution of a petition for review.

Although petitioner is correct that the courts of appeals

have disagreed about the appropriate standard, this case

is not a suitable vehicle for resolving that disagreement,

because the court of appeals did not expressly choose

between the two possible standards in this case and be-

cause petitioner is not entitled to a stay under either

standard.

2. There is disagreement in the courts of appeals

regarding which standard governs a request for a stay

of removal pending the resolution of a petition for re-

view. In opposing petitioner’s stay in the Fourth Cir-

cuit, the government contended that the applicable stan-

dard is contained in 8 U.S.C. 1252(f)(2), which states

that “no court shall enjoin the removal of any alien

* * * unless the alien shows by clear and convincing

evidence that the entry or execution of such order is

prohibited as a matter of law.” See, e.g., Gov’t C.A. Mot.

to Dismiss 9.2 The Eleventh Circuit agreed with that

position in Weng v. United States Attorney General, 287

F.3d 1335, 1337-1340 (2002) (per curiam). In contrast,

a number of courts of appeals have held that the Section

1252(f)(2) standard does not apply to requests for tem-

porary stays of removal pending appellate review. See

Tesfamichael v. Gonzales, 411 F.3d 169, 171-176 (5th

Cir. 2005), cert. denied, 128 S. Ct. 358 (2007); Hor v.

Gonzales, 400 F.3d 482, 483-485 (7th Cir. 2005); Douglas

v. Ashcroft, 374 F.3d 230, 233-234 (8d Cir. 2004); Arevalo

v. Ashcroft, 344 F.3d 1, 8-9 (1st Cir. 2003); Mohammed

v. Reno, 309 F.3d 95, 98-99 (2d Cir. 2002); Bezjanz v.

INS, 271 F.3d 670, 687-688 (6th Cir. 2001), abrogated on

other grounds by Fernandez-Vargas v. Gonzales, 548

U.S. 30 (2006); Andreiu v. Ashcroft, 253 F.3d 477,

480-482 (9th Cir. 2001) (en banc).* Those courts evaluate

stay requests under the traditional standard for grant-

ing preliminary injunctive relief, which considers the

* The government has pointed out that an “injunction” “command(s]

or prevent{s] an action,” Black’s Law Dictionary 788 (7th ed. 1999), and

granting a stay of removal prevents removal of the alien from the

United States. See also Weng v. United States Att’y Gen., 287 F.3d

1335, 1837-1838 (11th Cir. 2002) (per curiam) (discussing definition of

“stay” as “a kind of injunction”) (quoting Black’s Law Dictionary 529

(6th ed. 1990)). Further, application of Section 1252(f)(2) to stays of re-

moval is consistent with Congress's purpose in enacting IIRIRA, which

was to ensure prompt removal of illegal aliens from the United States.

See, e.g., Weng, 287 F.3d at 1340 n.10 (quoting Reno v. American-Arab

Anti-Discrimination Comm., 525 U.S. 471, 481482, 486 (1999)); S. Rep.

No. 249, 104th Cong., 2d Sess. 7 (1996).

* Petitioner includes (Pet. 11) the Tenth Circuit's decision in / im v.

Ashcroft, 375 F.3d 1011, 1012 (2004), but the Tenth Circuit in that case

did not explicitly address the issue of whether Section 1252(f)(2) applies

to stays pending appeal.

applicant’s likelihood of success on the merits; whether

irreparable harm would occur. if a stay is not granted;

whether that potential harm outweighs the harm to the

government if a stay is not granted; and whether grant-

ing a stay would serve the public interest. See, ¢.g.,

Tesfamichael, 411 F.3d at 172.

b. This case would be a poor vehicle for resolving

that disagreement because the Fourth Circuit has not

taken a position on which standard applies, and it did

not do so in this case. Before the court of appeals, peti-

tioner acknowledged that the Fourth Circuit “has not

yet squarely resolved this issue in a published decision.”

Appl. C.A. Pet. for Reh’g En Banc 13. In its order deny-

ing petitioner’s stay motion, the court of appeals simply

stated that “[t]he motion for stay of deportation is de-

nied,” without stating what standard it used. Pet. App.

1. The court likely believed that it did not need to re-

solve that question because, as the government ex-

plained, petitioner could not prevail under either the

Section 1252(f)(2) standard or the traditional injunctive

relief standard. See Gov’t Mot. to Dismiss 9-16.

Petitioner points to nothing in the court of appeals’

order that indicates it actually applied the Section

1252(f)(2) standard; instead, he simply assumes it must

have done so because, in his view, he would satisfy the

more lenient standard. Pet. 8-9. Because the Fourth

Circuit did not adopt the Section 1252(f)(2) standard in

this case, much less do so in a published decision that

would create circuit precedent on the issue, this case is

not a suitable vehicle for resolving the question of the

appropriate standard.

c. Review is also unwarranted because, as explained

in the government’s opposition to the stay application (at

13-15), petitioner could not prevail under either the Sec-

tion 1252(f)(2) standard or the traditional injunctive re-

lief standard. See Kenyeres v. Ashcroft, 538 U.S. 1301,

1305-1306 (2003) (Kennedy, J., in chambers) (noting the

disagreement in the circuits but concluding that it would

not be appropriate to review the issue in that case be-

cause “[a]pplicant is unlikely to prevail in his request for

a stay under either of the standards adopted by the

Courts of Appeals”). Petitioner has never attempted to

satisfy the Section 1252(f)(2) standard by providing

clear and convincing evidence that his removal is “pro-

hibited as a matter of law,” and he cannot do so. 8

U.S.C. 1252(f)(2); see Gov’t C.A. Mot. to Dismiss 9-11.

Petitioner instead contends, in cursory fashion, that he

merits a stay of removal under the more lenient injunc-

tive relief standard because the IJ found that he would

be tortured if removed to Jamaica. Pet. 9. he?

Petitioner cannot satisfy the traditional standard for

injunctive relief. He did not show a likelihood of ulti-

mate success on the merits of his CAT claim, because

the BIA correctly reversed the IJ’s finding that peti-

tioner met his burden of demonstrating a likelihood of

torture with government acquiescence. Pet. App. 4-6.

As the BIA explained, petitioner did not establish a ba-

sis for concluding that Jamaica’s laws prohibiting physi-

cal intimacy were routinely enforced, and thus petitioner

did not establish that it was more likely than not that he

would be arrested and prosecuted, much less tortured,

under those laws. /bid. (citing /n re M-B-A-, 23 1. & N.

Dec. 474 (B.1.A. 2002)). Further, as the BIA noted, peti-

tioner did not show that any harms that might befall him

would be with government acquiescence, particularly

because the Jamaican government has prosecuted those

who commit violence against homosexuals and has taken

steps to curtail violence by prison guards. /d. at 4, 6.

Petitioner has made no attempt to explain why the court

of appeals would overturn the BIA’s conclusions.

Further, petitioner has not demonstrated under the

traditional standard that the balance of the equities and

the public interest warranted a stay. Although peti-

tioner claims he will be tortured if removed to Jamaica

(Pet. 9), the BIA rejected that claim. Pet. App. 4-6.

‘Moreover, even if petitioner were to be removed from

the United States prior to the adjudication of his peti-

tion, he could continue to pursue his petition from

abroad. See, e.g., Obale v. Attorney Gen., 453 F.3d 151,

160 n.9 (8d Cir. 2006). And there would be harm to the

government, and the public interest, in staying the order

of removal. Petitioner has been found removable, and as

this Court has noted, the government has a “weighty”

interest in efficient administration of the immigration

laws. Landon v. Plasencia, 459 U.S. 21, 34 (1982). A

stay of removal would also harm the government and the

public interest by requiring additional expenditures of

public funds for detention of the alien (or, if he is re-

leased, for monitoring his whereabouts). See Sofinet v.

INS, 188 F.3d 703, 708 (7th Cir. 1999). That harm would

be particularly pronounced here, as petitioner has an

extensive history of criminal activity in the United

States. Pet. App. 13-14; see pp. 4-5, supra. Petitioner

therefore does not merit a stay of removal even under

the traditional injunctive relief test.

Regardless of which standard the court of appeals

used, its decision was correct. This case therefore is not

an appropriate vehicle for deciding whether the Section

1252(f)(2) standard applies to a motion to stay removal

pending resolution of a petition for review.

2. Petitioner also contends (Pet. 12-19) that the court

of appeals erred in concluding that it lacked jurisdiction

to review his fact-bound claim that he would be tortured

with government acquiescence if returned to Jamaica.

In petitioner’s view, any challenge to “the application of

law to facts” raises a “question{] of law” within the

meaning of 8 U.S.C. 1252(a)(2)(D). Pet. 12-12. Peti-

tioner is mistaken. Further, the decision below does not

conflict with any decision of this Court or any other

court of appeals, and review is not warranted because

petitioner would not prevail on his CAT claim even if the

federal courts had jurisdiction to review it. Moreover,

the court of appeals’ brief, unpublished decision would

not be an appropriate vehicle for resolving the question

presented, because the court did not provide an explana-

tion for why it dismissed the petition for review.

a. The court of appeals correctly determined that it

did not have jurisdiction to review petitioner’s claim.

Under 8 U.S.C..1252(a){2)(C), a court lacks jurisdiction

to review an order of removal for an alien who is remov-

able by reason of having been convicted of certain crimi-

nal offenses, including aggravated felony offenses. See,

e.g., Mbea v. Gonzales, 482 F.3d 276, 278 n.1 (4th Cir.

2007). Petitioner was found removable and was removed

due to, znter alia, an aggravated felony. See A.R. 293;

see also p. 4, supra. After petitioner illegally reentered

the United States, DHS determined that petitioner was

subject to removal through reinstatement of the prior

order of removal. See 8 U.S.C. 1231(a)(5); see also p. 5,

supra. Section 1252(a)(2)(C) thus generally bars fed-

eral-court review of petitioner’s removal order. ,

The exception for “questions of law” contained in 8

U.S.C. 1252(a)(2)(D) does not apply here. The BIA’s

decision to deny CAT protection was a fact-based deter-

mination. See Pet. App. 4-6. In reversing the IJ’s find-

ing that petitioner would be tortured if returned to Ja-

maica, the BIA ruled that the IJ’s determination was

“based on a series of unsupported suppositions” and was

not supported by the record evidence. /d. at4. The BIA

recounted how the evidence petitioner provided was in-

sufficient to meet his burden under a well-settled, un-

contested legal standard. /d. at 5-6. And the BIA re-

peatedly noted that the reason petitioner’s claim failed

was that he failed to present key evidence in support of

his claim. See, e.g., id. at 4 (“the record does not estab-

lish that it is more likely than not that any torture [peti-

tioner] may suffer in Jamaica would be by or at the ac-

quiescence of the government”) (emphasis added); zd. at

4-5 (“there is little evidence” regarding “the extent to

which [laws prohibiting homosexuality] [are] enforced”)

(emphasis added); zd. at 5 (“the record does not establish

that it is more likely than not that, if arrested and im-

prisoned, [petitioner] would be tortured by or at the ac-

quiescence of the Jamaican government”) (emphasis

added).

Although petitioner now denies that he is seeking

judicial review of the BIA’s factual findings, his petition

urges exactly that. See Pet. 17-18 (arguing that the BIA

erred in finding no likelihood that petitioner would be

tortured in Jamaica with government acquiescence in

light of petitioner’s “voluminous evidence” to the con-

trary). Petitioner seeks to have a federal court give

more weight to his evidence than the agency did, and

that type of claim falls outside the INA’s limited excep-

tion for legal and constitutional questions. Sce, e.g.,

Torres de la Cruz v. Maurer, 483’ F.3d 1013, 1019 n.5

(10th Cir. 2007) (“‘Questions of law’ pertain to ‘those

issues that were historically reviewable on habeas—con-

stitutional and statutory-construction questions, not dis-

cretionary or factual questions.’” (quoting H.R. Conf.

Rep. No. 72, 109th Cong., 1st Sess. 175 (2005)).

- Petitioner’s contention (Pet. 12-13) that any applica-

tion of law to undisputed facts raises a “question[] of

law” is mistaken. The REAL ID Act and its legislative

history make clear that Congress intended to preclude

review of both agency findings of historical facts and

agency determinations that result from the agency’s

weighing and evaluation of the evidence in determining

whether the alien has met his evidentiary burden. See,

e.g., H.R. Conf. Rep. No. 72, supra, at 175 (“When a

court is presented with a mixed question of law and fact,

the court should analyze it to the extent there are legal

- elements, but should not review any factual elements.”);

id. at 175-176 (“Factual questions include those ques-

tions that courts would review under the ‘substantial

evidence’ * * * standard.”). Under 'petitioner’s view,

the courts of appeals could review all agency determina-

tions in cases in which the historical facts are undis-

puted: That approach would make the term “questions

of law” lose all meaning and would seriously undermine

Congress’s goal of limiting judicial review of agency re-

moval determinations.

Petitioner’s contention (Pet. 17) that he raises a legal

claim by arguing that the BIA “committed clear legal

error by applying an incorrect standard of review” of

the IJ’s decision does not merit review. As an initial

matter, this claim is not properly before the Court, be-

cause petitioner did not raise it in the court of appeals

until his petition for rehearing en banc, and the court of

appeals never addressed the claim. See, e.g., United

States v. Williams, 504 U.S. 36, 41 (1992); Joseph v.

Blair, 488 F.2d 403, 404 (4th Cir. 1973) (per curiam),

cert. denied, 416 U.S. 955 (1974).

In any event, the claim lacks merit. The brief filed

by the government with the BIA specifically stated that

the applicable standard of review was the “clearly erro-

neous” standard, see Gov’t BIA Br. 2 (quoting 8 C.F.R.

1003.1(e)(6)(v)), and contended that the IJ’s determina-

tion that it was more likely than not that petitioner

would be tortured was clearly erroneous, ibid. Nor did

the BIA purport to apply de.novo review in its decision.

Rather, the BIA simply found that the evidence was

manifestly insufficient to support the IJ’s findings, Pet.

App. 4-6, as it was entitled to do under clear-error re-

view. See, e.g., Belortaja v. Gonzales, 484 F.3d 619, 624

(2d Cir. 2007). For example, the BIA found “little evi-

dence” (Pet. App. 4-5) that Jamaica’s law prohibiting

homosexual conduct is enforced, and it relied on the

BIA’s decision in In re M-B-A-,. 23 I. & N. Dec. 474,

475-480 (2002), which had found a similar flaw in a tor-

ture claim because it was based on “conjecture” and a

“chain of assumptions,” 7d. at 478-479. In any event,

absent a firm basis for concluding that the BIA failed to

apply the clear-error standard, its decision is entitled to

a presumption of regularity. See, e.g., Kamara v. Attor-

ney Gen., 420 F.3d 202, 212 (3d Cir. 2005).*

* Petitioner also contends (Pet. 18-19) that he was denied due process

because the BIA determined that he did not adduce sufficient evidence

to support his CAT claim. That claim is not properly before the Court,

because petitioner did not raise any due process claim before the BIA

or the court of appeals, and neither addressed such a claim. See, e.9.,

Williams, 504 U.S. at 41. Moreover, petitioner’s claim amounts to a

disagreement with the BIA’s weighing of the evidence in his particular

case, and such a claim does not warrant this Court’s review. In any

event, the argument lacks merit, because although the Due Process

Clause entitled petitioner to a “fair [removal) hearing,” Tun v. Gon-

zales, 485 F.3d 1014, 1025 (8th Cir. 2007), petitioner received the

process he was due: he had a hearing before an IJ, who permitted him

to present evidence and arguments. The BIA reviewed the evidence

b. Petitioner contends (Pet. 13-16) that the courts of

appeals disagree on whether a claim like his raises.a

question of law under 8 U.S.C. 1252(a)(2)(D). Petitioner

is mistaken. Like the court below, several courts of ap-

peals have concluded that an alien’s challenge to the

agency’s determination that he has not set forth suffi-

cient facts to demonstrate CAT eligibility does not raise

a “question{] of law.” See, e.g., Hanan v. Gonzales, 449

F.3d 834, 837 (8th Cir. 2006) (no judicial review of claim

that alien was improperly denied CAT relief because

“[t]hese are challenges to factual determinations”);

Boakai v. Gonzales, 447 F.3d 1, 5 (1st Cir. 2006) (no ju-

dicial review of claim “that the BIA was wrong in reject-

ing the CAT claim”); Hamid v. Gonzales, 417 F.3d 642,

647-648 (7th Cir. 2005) (no judicial review of question

whether the agency “correctly considered, interpreted,

and weighed the evidence presented” in determining the

likelihood of torture, which is an unreviewable “factual”

question). Just as in those cases, petitioner’s claim here

that he likely would be tortured in Jamaica with govern-

ment acquiescence is a fact-bound determination, not a

question of law. ,

petitioner presented and determined that, on the record he developed,

petitioner did not meet his burden of demonstrating that it was more

likely than not that he would be tortured by or with the acquiescence of

the Jamaican government. Pet. App. 4-6.

Petitioner does not dispute that he received the process he was due;

instead, he claims an entitlement to a certain’ outcome, apparently

hecause different aliens seeking different forms of relief on different

records received relief from removal. See Pet. 9, 18-19. That is not a

due process claim, for due process guarantees that a certain process be

followed, not that a certain outcome be reached. E.g.,/n re Real Estate

Title & Settlement Servs. Antitrust Litig., 869 F.2d 760, 768 (3d Cir.),

cert. denied, 493 U.S. 821 (1989).

Petitioner cites (Pet. 15-16) two cases in which courts

of appeals have found “questions of l2w” in the context

of CAT determinations. Neither of those courts consid-

ered a claim like petitioner’s, 2.e., that the agency mere-

ly erred in its assessment of the evidence. In Toussaint

v. Attorney General, 455 F.3d 409, 412 n.3, 415-416 (3d

Cir. 2006), and Jean-Pierre v. Attorney General, 500

F.3d 1315, 1322 (11th Cir. 2007), the courts of appeals

concluded that the question whether a particular course

of conduct amounts to “torture” under the CAT is a re-

viewable legal question. .In contrast to those cases, here

there is no argument about what constitutes torture as

a legal matter; instead, petitioner simply contends that

the evidence shows a likelihood that he would be sub-

jected to torture.’ This case thus does not implicate any

conflict in the circuits that would warrant review.

e. Even if the court of appeals erred in finding that

it lacked jurisdiction to review petitioner’s claim, further

review would not be warranted because petitioner would

* Petitioner also cites (Pet. 14) Chen v. Department of Justice, 471

F.3d 315 (2d Cir. 2006), for the proposition that a CAT claim like his is

reviewable, but that case is wholly inapposite. It addressed a challenge

to an IJ’s determination that the alien did not demonstrate changed or

extraordinary circumstances to excuse an untimely asylum application,

not a CAT claim. /d. at 330. The court’s dicta noted that it had found

a CAT claim reviewable on habeas corpus in a case decided prior to the

REAL ID Act, which concentrated review in the courts of appeals

under the jurisdictional limitations in 8 U.S.C. 1252(a)(2), see 471 F.3d

at 331 n.10, and therefore says nothing about whether certain CAT

claims are reviewable after the REAL ID Act.

The other pre-REAL ID Act cases petitioner cites (Pet. 13)—Singh

v. Ashcroft, 351 F.3d 435 (9th Cir. 2003), and Ogbudimkpa v. Ashcroft,

342 F.3d 207 (3d Cir. 2003)—are similarly inapposite because they

do not address the scope of judicial review allowed by 8 U.S.C.

1252(a)(2)(D). See, e.g., Kamara, 420 F.3d at 209 (recognizing that the

REAL ID Act “radically overhauled” the relevant “jurisdictional frame-

work”).

not succeed on his challenge to the agency’s denial of

CAT deferral. As the BIA correctly found, petitioner’s

claim was “based on a series of unsupported supposi-

tions,” and thus he could not meet his burden of showing

that it was likely that Jamaica’s laws prohibiting inti-

macy between men would be enforced, that he would be

imprisoned, that he would be tortured while in prison, or

that if he did experience torture it would occur with gov-

ernment acquiescence. Pet. App. 4-6. If the court of

appeals had jurisdiction to review petitioner’s claim, it

would do so under the “substantial evidence” standard,

INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992), and the

agency’s factual determinations would be “conclusive

unless any reasonable adjudicator would be compelled

to conclude to the contrary,” 8 U.S.C. 1252(b)(4)(B). In

light of the deficiencies in petitioner’s evidence noted by

the BIA, the record plainly does not compel a finding

that it is more likely than not that petitioner would be

tortured with government acquiescence if returned to

Jamaica. Further review of petitioner’s fact-bound

claim is therefore unwarranted.

CONCLUSION

The pétition for a writ of certiorari should be denied.

Respectfully submitted.