12-950

Quijano Melgar v. Holder

BIA

Sagerman, IJ

A095 041 943

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER

FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF

APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER

IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN

ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY

ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit,

held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the

City of New York, on the 7th day of August, two thousand thirteen.

PRESENT:

JON O. NEWMAN,

GERARD E. LYNCH,

SUSAN L. CARNEY,

Circuit Judges.

_____________________________________

BORIS EDUARDO QUIJANO MELGAR,

Petitioner,

v. 12-950

NAC

ERIC H. HOLDER, JR., UNITED STATES 

ATTORNEY GENERAL,

Respondent.

_____________________________________

FOR PETITIONER: Linda Kenepaske, New York, NY.

FOR RESPONDENT: Stuart F. Delery, Acting Assistant Attorney

General; Stephen J. Flynn, Assistant Director;

James A. Hurley, Attorney, Office of Immigration

Litigation, Civil Division, United States Department

of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a decision of the

Board of Immigration Appeals (“BIA”), it is hereby ORDERED, ADJUDGED, AND

DECREED that the petition for review is DENIED.

Petitioner Boris Eduardo Quijano Melgar, a native and citizen of El Salvador,

seeks review of a February 10, 2012 order of the BIA affirming the September 19, 2011

decision of Immigration Judge (“IJ”) Roger F. Sagerman, denying, inter alia, his

application for relief under the Convention Against Torture (“CAT”). In re Boris

Eduardo Quijano Melgar, No. A095 041 943 (B.I.A. Feb. 10, 2012), aff’g No. A095 041

943 (Immig. Ct. New York, Sept. 19, 2011). We assume the parties’ familiarity with the

underlying facts and procedural history of the case.

Under the circumstances of this case, we have reviewed the IJ’s decision as

supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). 

“[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 [INA]

section 212(a)(2),” 8 U.S.C. § 1252(a)(2)(C), which includes crimes involving moral

turpitude. Notwithstanding that provision, we retain jurisdiction to review petitions

raising “constitutional claims or questions of law,” 8 U.S.C. § 1252(a)(2)(D), to the extent

that such claims are not “so insubstantial and frivolous as to be inadequate to invoke

federal-question jurisdiction,” Barco-Sandoval v. Gonzales, 516 F.3d 35, 40 (2d Cir.

2008) (citations omitted). 

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Although we have repeatedly assumed that § 1252(a)(2)(C)’s jurisdictional bar

applies to claims of deferral of removal under the CAT, see, e.g., Savchuk v. Mukasey,

518 F.3d 119, 123 (2d Cir. 2008); Pierre v. Gonzales, 502 F.3d 109, 113 (2d Cir. 2007);

Maiwand v. Gonzales, 501 F.3d 101, 105 (2d Cir. 2007), we have never expressly so held,

see De La Rosa v. Holder, 598 F.3d 103, 107 (2d Cir. 2010), and two of our sister circuits

have held to the contrary, see Wanjiru v. Holder, 705 F.3d 258, 263 (7th Cir. 2013);

Lenus-Galvan v. Mukasey, 518 F.3d 1081, 1084 (9th Cir. 2008). We need not resolve

that jurisdictional issue, for we may exercise hypothetical jurisdiction where, as here, the

jurisdictional issues goes to statutory and not constitutional jurisdiction, and where it is

plain that the petitioner’s objections to the agency’s findings are meritless. See

Ivanishvili v. United States Dept’ of Justice, 433 F.3d 332, 338 n.2 (2d Cir. 2006); see

also 8 C.F.R. § 1208.17; Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.2d 156, 159 (2d

Cir. 2005).

CAT relief is only available where government officials perform the anticipated

torture or “know of or remain willfully blind to an act and thereafter breach their legal

responsibility to prevent it.” Khouzam v. Ashcroft, 361 F.3d 161, 171 (2d Cir. 2004). 

Here, the agency concluded that any harm Quijano Melgar might suffer at the hands of

Salvadoran gang members would not occur with the knowledge or willful blindness of the

government. Although the Salvadoran government may not be entirely effective in

controlling gang violence, the agency’s conclusion that the government would not be

willfully blind to harm caused by gang members is supported by substantial evidence

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showing government efforts to target gang members and prevent gang violence, including

laws criminalizing membership in gangs. The agency’s finding that Quijano Melgar did

not demonstrate that either the government or paramilitary groups indiscriminately harm

suspected gang members or individuals with tattoos, or that any harm inflicted upon

suspected gang members by the government would constitute torture, is also supported by

substantial evidence. It was within the agency’s discretion to give more weight to U.S.

State Department reports than to the testimony of petitioner’s expert witness on

Salvadoran gangs, which was based almost entirely on anecdotal material. See Hui Lin

Huang v. Holder, 677 F.3d 130, 138 (2d Cir. 2012).

Quijano Melgar also argues that the agency erred in concluding that he had not

shown it was more likely than not that he would be tortured in El Salvador because it

failed to consider his risk of torture in the aggregate. That argument is meritless, as the

BIA merely summarized the factual findings of the IJ, who explicitly considered “the

totality of the documentary evidence of record,” and reasonably concluded that: (1) the

evidence did not show that the Salvadoran government engaged in torture of tattooed

individuals; (2) paramilitary groups were not engaged in extrajudicial torture or killings

generally; and (3) to the extent Quijano Melgar might be tortured by gang members, it

would not be with the acquiescence of the government. 

For the foregoing reasons, the petition for review is DENIED. 

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk

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