Opposition Brief — Sainthana v. Mukasey (No. 08-71)

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‘Supreme Count, U.S

FILED

wo 2 | OCT 2.0 2003

No. 08-71 | OFFICE OF THE CLERK

Jn the Supreme Court of the Gnited States

MACKENTOCH SAINTHA, PETITIONER

VU.

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

GREGORY G. GARRE

Solicitor General

Counsel of Record

GREGORY G. KATSAS

Assistant Attorney General

DONALD E. KEENER

ROBERT N. MARKLE

Attorneys

Depurtment of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Whether the court of appeals correctly held that it

lacked jurisdiction to review the Board of Immigration

Appeals’ ruling that petitioner failed to establish that, if

he were returned to Haiti, the Haitian government

would acquiesce in the commission of acts against him

that constitute torture.

(1)

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

A-S-B-, In re, 24 1. & N. Dec. 493 (2008) ........... 14,15

Almuhtaseb v. Gonzales, 453 F.3d 743 (6th Cir. 2006) ... 13

Arteaga v. Mukasey, 511 F.3d 940 (9th Cir. 2007) ...... 12

Boakai v. Gonzales, 447 F.3d 1 (1st Cir. 2006) .......... 11

Boumediene v. Bush, 1288S. Ct. 2229 (2008) ........... 10

Hamid v. Gonzales, 417 F.3d 642 (7th Cir. 2005) ....... 1]

Hanan v. Gonzales, 449 F.3d 834 (8th Cir. 2006) ....... li

Higuit v. Gonzales, 433 F.3d 417 (4th Cir.), cert.

denied, 648 US. OG (2006)... cc ew ces 10

INS v. Elias-Zacarias, 502 U.S. 478 (1992) ............ 16

INS v. St. Cyr, 583 U.S. 289 (2001) ............065. 10, 11

Jean-Pierre v. United States Att’y Gen., 500 F.3d

Pt Ss ET naar hk ks cea ee Nn asied ne dk eee 12

Lopez-Soto v. Ashcroft, 383 ¥°'.3d 228 (4th Cir. 2004) ..... 2

Mbea v. Gonzales, 482 F.3d 276 (4th Cir. 2007) .......... 8

Ogbudimkpa v. Ashcroft, 342 F.3d 207 (3d Cir. 2003) ... 12

Pierre v. Gonzales 502 F.3d.109 (2d Cir. 2007) ......... 12

Rungolaun v. Mukasey, 128 8. Ct. 2934 (2008) ........... 8

Singh v. Ashcroft, 351 F.3d 435 (9th Cir. 2003) ......... 12

(11)

Cases—Continued: Page

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

aa ease xe hb Noe enc a ae Oe 6 ok oe oe 9

Toussaint v. Attorney Gen. of the U.S., 455 F.3d 409

I ee 5e b riwcd Oo aky Ck ws dues cue eae 12

United States v. Williams, 504 U.S. 36 (1992) .......... 10

V-K-, In re, 24.1. & N. Dec. 500 (2008) ................ 14

Wang v. Ashcroft, 320 F.3d 130 (2d Cir. 2003) .......... 12

Constitution, treaty, statutes, regulations and rule:

U.S. Const. Art. I, § 9 (Suspension Clause) ............ 10

United Nations Convention Against Torture and

Other Cruel, Inhuman or Degrading Treatment or

Punishment (CAT), adopted Dec. 10, 1984, S.

Treaty Doe. No. 20, 100th Cong., 2d Sess. (1988),

EE aE SS Ok eh i Ne A ee ee ea a ee 1

Foreign Affairs Reform and Restructuring Act of

1998, Pub. L. No. 105-277, Div. G, § 2242, 112 Stat.

Dees Ce Sta. Lae ORR) oc cic cececcsseiusces 2

ee Cr ee re er ree ree oe 3

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

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BU GRs, SD ines ois caw ceecwceees passim

CALA SOS Sac tvevcreeceesbacewaeees 16

Statutes and regulations and rule—Continued: Page

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

§ 106(a)(1)(A) (iii), 119 Stat. 310 ............. 3, 9, 12, 15

8 C.F.R.:

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EE 90S ov ok ek ww owe he ed eae een 13

Miscellaneous:

H.R. Conf. Rep. No. 72, 109th Cong., 1st Sess. (2005) ... 10

Jn the Supreme Court of the GAnited States

No. 08-71

MACKENTOCH SAINTHA, PETITIONER

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. la-25a)

is reported at 516 F.3d 242. The decisions of the Board

of Immigration Appeals (Pet. App. 26a-39a) and the im-

migration judge (Pet. App. 40a-50a) are unreported.

JURISDICTION

The judgment of the court of appeals was entered on

February 14, 2008. A petition for rehearing was denied

on April 14, 2008 (Pet. App. 54a). The petition for a writ

of certiorari was filed on July 11, 2008. The jurisdiction

of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. a. A person who is present in the United States

and fears torture if removed to a certain country may

obtain protection under the United Nations Convention

(1)

Against Torture and Other Cruel, Inhuman or Degrad-

ing Treatment or Punishment (CAT), adopted Dec.

10, 1984, S. Treaty Doc. No. 20, 100th Cong., 2d Sess.

(1988), 1465 U.N.T.S. 85. The CAT has been imple-

mented through regulations of the Department of Jus-

tice. See Foreign Affairs Reform and Restructuring Act

of 1998, Pub. L. No. 105-277, Div. G, § 2242, 112 Stat.

2681-822 (codified at 8 U.S.C. 1231 note); see also 8

C.F.R. 1208.16-1208.18.

To obtain protection under the CAT, an alien must

demonstrate that it is more likely than not that he

would be tortured in the country of removal. 8 C.F.R.

1208.16(¢c)(3). Torture “is an extreme form of cruel and

inhuman treatment” that “does not include lesser forms

of cruel, inhuman or degrading treatment or punishment

that do not amount to torture.” 8 C.F.R. 1208.18(a)(1),

(2). Conduct constitutes torture only if it is “specifically

intended to inflict severe physical or mental pain or suf-

fering.” 8 C.F.R. 1208.18(a)(5). Pain and suffering “in-

herent in or incidental to lawful sanctions” or resulting

from law enforcement authorized by law are not torture.

8 C.F.R. 1208.18(a)(3).

Importantly, to qualify for CAT protection, the acts

alleged to constitute torture must be inflicted “by or at

the instigation of or with the consent or acquiescence of

a public official or other person acting in an official ca-

pacity.” 8 C.F.R. 1208.18(a)(1). “Acquiescence of a pub-

lic official requires that the public official, prior to the

activity constituting torture, have awareness of such

activity and thereafter breach his or her legal responsi-

bility to intervene to prevent such activity.” 8 C.F.R.

1208.18(a)(7); see, e.g., Lopez-Soto v. Ashcroft, 383 F.3d

228, 234 (4th Cir. 2004).

Two forms of protection are available under the

CAT: withholding of removal and deferral of removal.

An alien who has committed an aggravated felony and

has been sentenced to at least five years of imprison-

ment is ineligible for withholding of removal under the

CAT. See 8 U.S.C. 1231(b)(3)(B); 8 C.F.R. 1208.16(c)(4)

and (d)(2). Such a person may nevertheless obtain de-

ferral of removal to a particular country if the govern-

ment determines that he is more likely than not to be

tortured by the government or with government acqui-

escence in that country. 8 C.F.R. 1208.16(c)(4) and

1208.17(a).

b. Under the Immigration and Nationality Act

(INA), 8 U.S.C. 1101 et seq., “no court shall have juris-

diction to review any final order of removal against

an alien who is removable by reason of having commit-

ted a criminal offense covered in section * * *

1227(a)(2)(A)Gii),” 2.e., an aggravated felony. 8 U.S.C.

1252(a)(2)(C). In 2005, Congress amended the INA to

include the following provision:

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. 109-138, Div. B, § 106(a)(1)(A)(ili), 119

Stat. 310.

2. Petitioner is a native and citizen of Haiti who was

admitted to the United States as a refugee in 1994 and

became a lawful permanent resident in 1995. Pet. App.

4a. In 2001, after having been convicted multiple times

of larceny, petitioner was convicted of robbery and sen-

tenced to fifteen years of imprisonment. /d. at 4a, 30a.

When he was released from prison after serving five

years of his sentence, United States Immigration and

Customs Enforcement charged him with being remov-

able from the United States because his robbery offense

is an aggravated felony. Jd. at 4a; see 8 U.S.C.

1227(a)(2)(A)(iii) (“Any alien who is convicted of an ag-

gravated felony at any time after admission is deport-

able.’’).

Petitioner conceded that he is removable because he

was convicted of an aggravated felony, but he sought

deferral of removal under the CAT. Pet. App. 4la. He

claimed he would be tortured if returned to Haiti be-

cause his stepfather had been involved in the political

party Organisation Populaire de Bon-Repos (OPB), a

party formed to oppose Jean-Claude Duvalier, the ruler

of Haiti from 1971 to 1986, and his supporters, including

General Raoul Cedras, who was the leader of the Hai-

tian government when OPB was founded. /d. at 5a.'

Petitioner’s stepfather had testified that his sister

had been beaten and killed because of her affiliation

with OPB in 1988. Pet. App. 5a. He also testified that,

when he returned to Haiti in 2003, he was forced into

hiding due to threats from political opponents, who

killed petitioner’s maternal grandmother because they

could not find him. /d. at 45a. And he and petitioner

' Petitioner also sought a waiver of inadmissibility under 8 U.S.C.

1159(c) in order to again adjust his status to that of a lawful permanent

resident under 8 U.S.C. 1159(a). Pet. App. 40a-41a. The immigration

judge (id. at 41a), Board of Immigration Appeals (id. at 3la-32a), and

court of appeals (id. at 18a-25a) all rejected that argument, and peti-

tioner does not renew it before this Court.

testified that one of petitioner’s cousins had been killed

around the same time, and they believed she was killed

by opponents of the OPB. J/bid.

An immigration judge (IJ) determined that peti-

tioner was removable as charged but granted his appli-

cation for deferral of removal under the CAT. Pet. App.

40a-50a. The IJ found the testimony of petitioner and

his stepfather credible, id. at 47a, and concluded that

there was “a probability that [petitioner] would be tor-

tured upon return tc Haiti by his stepfather’s political

opponents,” id. at 47a-48a.

The IJ then determined that torture would likely

occur with government acquiescence because “the gov-

ernment of Haiti would be aware of the potential torture

of [petitioner] and would be ‘willfully blind’ to its occur-

rence.” Pet. App. 48a-49a. The IJ explained that the

“the government of Haiti would be well-aware of [peti-

tioner’s] return” because he is a criminal deportee, and

“the Haitian government makes little or no effort to pro-

tect the rights of criminal deportees.” /d. at 48a.

3. The Board of Immigration Appeals (BIA) re-

versed the IJ’s determination that petitioner was enti-

tled to deferral of removal under the CAT. Pet. App.

28a-39a. The BIA observed that, to obtain CAT defer-

ral, an alien must show that it is more likely than not

that he would be tortured “by a public official, or at

the instigation or with the acquiescence of such an indi-

vidual.” Jd. at 32a (citing 8 C.F.R. 1206.16(c) and

1208.18(a)). The BIA noted that “it is not enough for an

alien to string together a chain of speculative events”;

rather, the alien “must show that it is more likely than

not that each event will take place upon his removal.”

Ibid. Reviewing all of the evidence in the record, the

BIA agreed with the IJ that it is more likely than not

“that his stepfather’s enemies would seek to torture [pe-

titioner]” if he were returned to Haiti. /d. at 32a, 35a.

The BIA disagreed with the IJ, however, that peti-

tioner had established that the Haitian government

would acquiescence in that torture. Pet. App. 36a-38a.

Petitioner argued that either he would be tortured in a

Haitian prison because he is a criminal deportee or that

he would be released from prison and his stepfather’s

enemies would torture him. Pet. BIA Br. 10-15. The

BIA “consider[ed]} the record in its totality” and con-

cluded that “there is insufficient evidence * * * to con-

clude that it is more likely than not that the Haitian gov-

ernment would acquiesce in [petitioner’s] torture.” Pet.

App. 37a. The BIA explained that although “Haiti’s past

is rife with political violence” and “governmental corrup-

tion” continues to exist, “these problems do not show

that the Haitian government would likely remain will-

fully blind to [petitioner’s] risk of torture.” Jbid. The

BIA stated that, “on the record before [it],” it is “just as

likely that | petitioner’s] family would be able to manipu-

late the system in order to either expedite his release

from prison or insure that he is not tortured.” /d. at

37a-38a.

One Board member concurred, noting that “[t]he

continued presence of [petitioner’s stepfather’s] sister in

Haiti substantially undercuts the claim that the stepfa-

ther’s enemies would seek to torture [petitioner] today.”

Pet. App. 38a-39a.

4. The court of appeals dismissed the petition for

review for lack of jurisdiction. Pet. App. la-25a. The

court observed that it generally “do[es] not have juris-

diction to review final orders of removal against aliens

charged with removability by reason of having commit-

ted aggravated felonies” under 8 U.S.C. 1252(a)(2)(C).

Pet. App. 10a. Because petitioner conceded that he is

removable because he committed an aggravated felony,

the court explained, it lacked jurisdiction to review

his claim unless the claim raised a “constitutional

claim[] or question[] of law.” Jbid. (quoting 8 U.S.C.

1252(a)(2)(D)).

The court considered the nature of petitioner’s par-

ticular claim and determined that it did not raise a “con-

stitutional claim[] or question[] of law.” Pet. App. 10a-

17a. The court noted that petitioner’s argument on ap-

peal was that “the BIA erred in finding insufficient evi-

dence to conclude that the Haitian government would

likely acquiesce in his torture.” /d. at 9a. The court

determined that that contention did not raise a “ques-

tion[] of law,” reasoning that, because in the absence of

the statutory bar in Section 1252(a)(2)(C) such a claim

normally would be reviewed under the “substantial evi-

dence” standard, it is “necessarily factual in nature.” /d.

at 14a-15a. In the court’s view, Congress did not intend

the courts of appeals to review an alien’s fact-specific

disagreement with the BIA. /d. at 13a-14a, 16a. Peti-

tioner’s invitation to “reweigh the evidence,” the court

concluded, is “precisely the type of factual re-hashing

[the court] must not do.” /d. at 17a.

In any event, the court concluded that even if it had

jurisdiction to review petitioner’s claim, that claim

“would likely fail because there exists substantial evi-

dence to support the BIA’s determination.” Pet. App.

17a n.7. The court explained that petitioner “failed to

make the requisite showing that the Haitian government

was aware of, let alone willfully blind to, the violence

suffered by his family members and his stepfather’s po-

litical allies.” /bid.

5. The court of appeals denied petitioner’s petition

for rehearing or rehearing en banc, with no judge calling

for a vote on the petition. Pet. App. 54a.

ARGUMENT

Petitioner contends (Pet. 29-37) that the court of ap-

peals erred in concluding that it lacked jurisdiction to

review his fact-bound claim that he had not shown that

the government of Haiti would acquiesce in his torture.

In petitioner’s view (Pet. 30), any challenge to “the ap-

plication of law to fact” raises a “question[] of law”

within the meaning of 8 U.S.C. 1252(a)(2)(D). Petitioner

is mistaken. Further, contrary to petitioner’s contention

(Pet. 16-29), the decision below does not conflict with

any decision of this Court or any other court of appeals.

In any event, review is not warranted because petitioner

would not prevail on his CAT claim even if the federal

courts had jurisdiction to review it. This Court has re-

cently denied review on a similar fact-bound question in

Rangolan v. Mukasey, 128 S. Ct. 2934 (2008) (No. 07-

1169), and the same result should obtain here.

1. The court of appeals correctly determined that it

lacked jurisdiction to consider petitioner’s claim. As the

court explained, under 8 U.S.C. 1252(a)(2)(C), a court

lacks jurisdiction to review an order of removal of an

alien who is removable by reason of having been con-

victed of certain criminal offenses, including aggravated

felony offenses. Pet. App. 10a; see, e.g., Mbea v. Gonza-

les, 482 F.3d 276, 278 n.1 (4th Cir. 2007). Petitioner has

conceded that he is removable because he committed an

aggravated felony. Pet. App. 30a, 40a-4la. Section

1252(a)(2)(C) thus generally bars federal-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 de-

cision to deny CAT protection because petitioner failed

to adduce sufficient evidence to meet his burden is a

fact-based determination that does not turn on a “ques-

tion[] of law.” See Pet. App. 9a, 1la-12a, 16a. In revers-

ing the IJ’s finding that petitioner would be tortured

with government acquiescence if returned to Haiti, the

BIA “consider[ed] the record in its totality” and con-

cluded as a factual matter that “there is insufficient evi-

dence * * * to conclude that it is more likely than not

that the Haitian government would acquiesce in [peti-

tioner’s] torture.” /d. at 37a.

The BIA explained that the evidence petitioner pro-

vided was insufficient to meet his burden under a

well-settled, uncontested legal standard. Pet. App. 37a-

38a. And the BIA repeatedly noted that the reason peti-

tioner’s claim failed was that he failed to present key

evidence in support of his claim. See, e.g., id. at 32a (“it

is not enough for an alien to string together a chain of

speculative events”); id. at 37a (“there is insufficient

evidence” to support petitioner’s claim); 2b2d. (claim fails

on “the record before us”). 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 exception for legal and constitutional questions.

E.g., Torres de la Cruz v. Maurer, 483 F.3d 1013, 1019

n.5 (10th Cir. 2007); see Pet. App. 17a (“reweigh[ing] the

evidence” is “precisely the type of factual re-hashing

[the court] must not do” under the REAL ID Act).

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 determi-

nations that result from the agency’s weighing and eval-

uation of the evidence in determining whether the alien

has met his evidentiary burden. See, e.g., H.R. Conf.

Rep. No. 72, 109th Cong., lst Sess. 175 (2005) (“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.”). As the court of appeals

has observed, courts “are not free to convert every im-

migration case into a question of law, and thereby un-

dermine Congress’s decision to grant limited jurisdic-

tion over matters committed in the first instance to the

sound discretion of the Executive.” Higuzt v. Gonzales,

433 F.3d 417, 420 (4th Cir.), cert. denied, 548 U.S. 906

(2006) (cited at Pet. App. 17a). The court of appeals

therefore correctly concluded that it lacked jurisdiction

over petitioner’s claim.’

* Petitioner lists (Pet. i), as a question presented, whether “Congress

may repeal judicial review by any means over a claim involving the ap-

plication of law to fact,” consistent with the Suspension Clause, U.S.

Const. Art. I, § 9. Petitioner never raised that contention in the court

of appeals. He addressed the jurisdictional issue only in his reply brief,

and the discussion in that brief contained no mention of any constitu-

tional claim. Pet. C.A. Reply Br. 3-12. Because petitioner’s claim was

not pressed or passed on below, it should not be considered by this

Court. E.g., United States v. Williams, 504 U.S. 36, 41 (1992).

In any event, petitioner's claim lacks merit, because this Court did

not hold in either /NS v. St. Cyv, 5383 U.S. 289 (2001), or Boumediene v.

Bush, 1288. Ct. 2229 (2008), that the Constitution requires judicial re-

view of an alien’s claim if it involves the application of law to fact. Bou-

mediene addressed judicial review under a materially different statu-

tory regime in the unique context of the wartime detention of enemy

combatants, zd. at 2272-2273, not judicial review of removal orders

under 8 U.S.C. 1252. Although the St. Cyr Court suggested that “de-

tentions based on errors of law, including the erroneous application or

Petitioner contends (Pet. 29-30) that any challenge

by an alien to any application of law to undisputed facts

raises a “question|] of law.” Whatever the merits of that

contention, it is not presented here, as the court of ap-

peals concluded. Pet. App. 12a n.4; p. 13, infra. The

question whether petitioner has established as a matter

of fact that it is more likely than not that he would be

tortured with the acquiescence of the Haitian govern-

ment is not undisputed. The BIA concluded that peti-

tioner had not adduced sufficient evidence to support

such a finding, and petitioner disputed that determina-

tion on judicial review.

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

appeals disagree on whether an argument that the BIA

erred in weighing the evidence regarding government

acquiescence raises a question of law under 8 U.S.C.

1252(a)(2)(D). Petitioner is mistaken. Like the court

below, several courts of «ppeals have concluded that an

alien’s challenge to the agency’s determination that he

has not set forth sufficient 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 judicial review of claim “that the BIA was

wrong in rejecting 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 de-

interpretation of statutes,” were historically cognizable on habeas, 533

U.S. at 302, the Court did not clarify what it meant by the term “appli-

cation,” and that language played no part the Court’s analysis, which fo-

cused on “ye questions of law,” zd. at 305.

termining the likelihood of torture, which is an unre-

viewable “factual” question). Just as in those cases, peti-

tioner’s claim here that he likely would be tortured in

Haiti with government acquiescence is a fact-bound de-

termination, not a question of law.

Although petitioner cites (Pet. 22-23) several cases in

which courts of appeals have found “questions of law” in

the context of CAT determinations, none of those courts

considered a claim like petitioner’s, 2.e., that the agency

merely erred in its assessment of the evidence regarding

government acquiescence. In Toussaint v. Attorney

General of the United States, 455 F.3d 409, 412 n.3,

415-416 (3d Cir. 2006); Jean-Pierre v. United States At-

torney General, 500 F.3d 1315, 1822 (11th Cir. 2007);

and Pierre v. Gonzales, 502 F.3d 109, 113-114 (2d Cir.

2007), the courts of appeals concluded that the question

whether a particular course of conduct amounts to “tor-

ture” under the CAT is a reviewable legal question.

This case does not involve a dispute about the legal defi-

nition of “torture.” Petitioner also cites (Pet. 23) Arte-

aga v. Mukasey, 511 F.3d 940 (9th Cir. 2007), but that

case did not address the scope of the phrase “question[]

of law” in 8 U.S.C. 1252(a)(2)(D). Indeed, the court

did not even mention Section 1252(a)(2)(D), because it

relied on previous precedent to hold that 8 U.S.C.

1252(a)(2)(C) does not bar review of an aggravated

felon’s CAT claim when the IJ denies CAT relief on the

merits. /d. at 942 n.1.

The pre-REAL ID Act cases petitioner cites (Pet. 6,

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

Wang v. Ashcroft, 320 F.3d 130 (2d Cir. 2003); and Og-

budimkpa v. Ashcroft, 342 F.3d 207 (3d Cir. 2003)—are

inapposite because they do not address the scope of judi-

cial review allowed by 8 U.S.C. 1252(a)(2)(D). Petitioner

also cites (Pet. 22-23) two unpublished court of appeals

decisions, but those decisions do not establish binding

precedent and thus could not give rise to the type of dis-

agreement in the circuits that could warrant this Court’s

review. See Sup. Ct. R. 10.

Petitioner cites various cases (Pet. 18-21, 24-26) ad-

dressing whether other types of claims (7.e., claims other

than a claim that the BIA erred in its factual finding

that the alien had not shown a likelihood of torture with

government acquiescence) raise “questions of law”

within the meaning of 8 U.S.C. 1252(a)(2)(D). Those

cases, however, do not shed light on whether petitioner’s

claim raises a “question[] of law,” because, as numerous

courts have recognized, that inquiry depends on the par-

ticular type of claim at issue. See, e.g., Almuhtaseb v.

Gonzales, 453 F.3d 743, 748 n.3 (6th Cir. 2006) (“em-

phasiz{ing] that a particularized inquiry into the nature

of a petitioner’s claim is necessary to determine whether

[the court} ha[s] jurisdiction”). Certiorari is not war-

ranted where, as here, the courts have come to the same

.conclusion when considering the same types of claims.

There is, therefore, no split in the circuits that warrants

this Court’s review.

Indeed, to the extent that petitioner seeks review on

the abstract question whether “questions of law” in-

cludes “the application of law to fact” (Pet. 30), it is

worth noting—as petitioner concedes (Pet. 14, 20-21)—

that the court of appeals expressly refused to weigh in

on that issue. Pet. App. 12a n.4 (“We need not resolve”

whether “questions of law are limited to questions of

statutory interpretation or also include mixed questions

of law and fact.”).

Petitioner also contends (Pet. 27-28) that review is

warranted because the decision below is inconsistent

“4

with two recent decisions of the BIA. That is incorrect.

Neither BIA decision considered the scope of the excep-

tion for “questions of law” contained in 8 U.S.C.

1252(a)(2)(D). That statutory provision governs judicial

review of BIA decisions, and thus does not apply in the

BIA proceedings themselves. Instead, the BIA deci-

sions addressed the scope of the BIA’s review of IJ deci-

sions under 8 C.F.E. 1003.1(d)(3). That regulation di-

rects the BIA to review “[fJacts determined by the immi-

gration judge, including findings as to the credibility of

testimony,” under the “clearly erroneous” standard. 8

C.F.R. 1003.1(d)(3)(i). The regulation also states that

the BIA shall review “questions of law, discretion, and

judgment and all other issues * * * de wovo.” 8 C.F.R.

1003.1(d)(3)(ii).

In In re V-K-, 24 1. & N. Dec. 500 (2008), the BIA

held that the question whether an alien had established

a likelihood of torture was to be reviewed de novo, be-

cause it was not the type of credibility determination or

finding of historical fact that was entrusted by the regu-

lation to the IJ and reviewed only for clear error. Jd. at

501. The court did not hold that such a question is a

“question[] of law”; rather, it characterized such a ques-

tion as a question of “judgment.” /bid. The BIA applied

the same principle in Jn re A-S-B-, 24 1. & N. Dec. 493

(2008), and held that an IJ’s determination that an alien

established a well-founded fear of persecution was not

the sort of finding of fact reviewable only for clear error

within the meaning of the regulation. /d. at 497-498.

Again, the BIA was construing only the scope of the At-

torney General’s own regulation, and it simply distin-

guished historical facts and credibility determinations

from “all other issues” (8 C.F.R. 1003.1(d)(3)(ii)), which

the regulation directs the BIA to review de novo.

241.&N. Dec. 497-498. These two decisions, therefore,

do not establish any conflict in authority with the deci-

sion below.’ :

3. 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

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

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

evidence of Haiti’s violent political past and the contin-

ued existence of government corruption is insufficient to

meet his burden of showing that the Haitian government

would acquiesce in his torture. Pet. App. 37a. In the

BIA’s view, the record evidence reveals that “it seems

just as likely that [petitioner’s] family would be able to

manipulate the system” to protect him from torture,

particularly because petitioner’s stepfather’s sister still

lives in Haiti. Jd. at 37a-38a.

If the court of appeals had jurisdiction to review peti-

tioner’s claim, it would do so under the deferential “sub-

° Petitioner argues (Pet. 28) that the court of appeals’ decision “cre-

ated an untenable whipsawing effect” on him because the BIA upheld

the IJ’s finding that the testimony presented was credible, yet conclu-

ded that he had failed to meet his burden of establishing that he would

be tortured with government acquiescence. That is incorrect. The BIA

simply concluded that, although the evidence petitioner presented was

credible, he did not provide enough evidence to meet his burden. Pet.

App. 32a (“it is not enough for an alien to string together a chain of

speculative events”); id. at 37a (“there is insufficient evidence * * *

to conclude that it is more likely than not that the Haitian government

would acquiesce in [petitioner’s] torture). Moreover, it is not anomalous

that the BIA reviewed petitioner’s claim de novo, while the court of

appeals lacked jurisdiction to review it, because 8 C.F.R. 1003.1(d)(3)

was intended to authorize broad agency review, e.g., A-S-B-,241.&N.

Dec. at 496, while the REAL ID Act was intended to authorize only a

narrow form of judicial review, see pp. 9-10, supra.

stantial evidence” standard, JNS v. Elias-Zacarias, 502

U.S. 478, 481 (1992), under which the agency’s factual

determinations are “conclusive unless any reasonable

adjudicator would be compelled to conclude to the con-

trary,” 8 U.S.C. 1252(b)(4)(B). The court of appeals has

already concluded that petitioner likely cannot prevail

under that standard. The court stated that petitioner’s

claim “would likely fail because there exists substantial

evidence to support the BIA’s determination,” conclud-

ing that petitioner “failed to make the requisite showing

that the Haitian government was aware of, let alone will-

fully blind to, the violence suffered by his family mem-

bers and his stepfather’s political allies.” Pet. App. 17a

n.7. In light of the deficiencies in petitioner’s evidence

noted by both the BIA and the court of appeals, the re-

cord plainly does not compel a finding that it is more

likely than not that petitioner would be tortured with

government acquiescence if returned to Haiti. Further

review of the decision below is therefore unwarranted

for this additional reason as well.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.