2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-25-2013

Francisco Medina Valdez v. Attorney General

United States

Precedential or Non-Precedential: Non-Precedential

Docket No. 12-3783

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 12-3783

___________

FRANCISCO MEDINA VALDEZ,

 Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA,

 Respondent 

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A030-106-192)

Immigration Judge: Honorable Margaret R. Reichenberg

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

March 22, 2013

Before: FUENTES, VANASKIE and VAN ANTWERPEN, Circuit Judges

(Opinion filed: March 25, 2013)

___________

OPINION

___________

PER CURIAM

Francisco Medina Valdez is a native and citizen of the Dominican Republic who 

was admitted to the United States as a lawful permanent resident in November 1970. 

Over the course of the next forty years, he sustained convictions for the following 

offenses: (1) on November 5, 1986, second degree assault in violation of New York Penal 
2

Law § 120.05; (2) on January 27, 1988, possession of a controlled substance (cocaine) in 

violation of 21 U.S.C. § 3147; (3) on February 22, 1991, attempted criminal possession 

of stolen property in violation of New York Penal Law §§ 110 and 165.50; and (4) on 

September 17, 2010, making a false statement on a passport application in violation of 18 

U.S.C. § 1542.

In June 2011, the Department of Homeland Security (DHS) issued a Notice to 

Appear charging Medina with removal under: (1) 8 U.S.C. § 1227(a)(2)(A)(ii), as an 

alien convicted of two crimes involving moral turpitude (CIMT) not arising out of a 

single scheme of criminal misconduct; (2) 8 U.S.C. § 1227(a)(2)(B)(i), as an alien 

convicted of a violation of a law relating to a controlled substance; and (3) 8 U.S.C. 

§ 1227(a)(2)(A)(iii), as an alien convicted of a crime of violence, which is an aggravated 

felony, see 8 U.S.C. § 1101(a)(43)(F). During the August 2011 calendar hearing, Medina 

admitted the factual allegations in the Notice to Appear, and conceded the first two 

removal charges. He denied only the aggravated felony charge, arguing that the Illegal 

Immigration Reform and Immigrant Relief Act of 1996 (IIRIRA), which reduced, from 

five years to one, the minimum term of imprisonment necessary for a crime of violence to 

qualify as an aggravated felony, should not apply retroactively to his 1986 assault 

conviction, for which he was sentenced to one year in prison. 

DHS subsequently lodged an additional charge of removal against Medina, 

alleging that he was an alien convicted of an aggravated felony theft offense based on his 

1991 conviction. See 8 U.S.C. §§ 1227(a)(2)(A)(iii); 1101(a)(43)(G). Medina applied 

for asylum, withholding of removal, and protection under the Convention Against 
3

Torture (CAT), claiming that he would be persecuted if forced to return to the Dominican 

Republic because: (1) a neighbor with whom Medina was feuding threatened to contact a 

sergeant in their home country to have Medina killed; and (2) the police in the Dominican 

Republic persecute criminal deportees. He also sought cancellation of removal under 8 

U.S.C. § 1229b(a), and a waiver of inadmissibility under former § 1182(c). 

Following a hearing, the Immigration Judge (IJ) found that DHS had proved its 

charges against Medina; that he was ineligible for asylum or withholding of removal 

because his convictions for assault and theft are “particularly serious crime[s],” see 8 

U.S.C. §§ 1158(b)(2)(A)(ii), 1231(b)(3)(B)(ii) & (b)(3)(B) (last paragraph); that he failed 

to meet his burden of showing eligibility for deferral of removal under the CAT because 

the evidence did not suggest a likelihood of torture, see 8 C.F.R. § 1208.16(c)(2); that his 

2010 conviction for passport fraud renders him ineligible for relief under former 

§ 1182(c), see 8 C.F.R. § 1212.3(h)(3); and that he is not eligible for cancellation of 

removal because he was convicted of aggravated felonies in 1986 and 1991, see 8 U.S.C. 

§§ 1229b(a)(3), 1101(a)(43)(F), (G). Upon administrative review, the BIA affirmed the 

IJ‟s decision and dismissed the appeal. This pro se petition for review followed. 

Medina‟s primary argument on appeal is that the BIA erred in determining that he 

failed to demonstrate eligibility for relief under the CAT.

1

 To be eligible for such relief, 

Medina was required to show that it is more likely than not that he would be tortured if 

 

1

To the extent that Medina argues that the BIA erred in making an adverse credibility 

determination, in requiring corroborating evidence, and in relying on the “specific intent 

doctrine,” (Br. 11-15), we note that the BIA‟s decision does not make reference to any of 

these considerations. 
4

removed to the Dominican Republic. See 8 C.F.R. § 1208.16(c)(2). “Torture” consists 

of the intentional infliction of “severe pain or suffering . . . by or at the instigation of or 

with the consent or acquiescence of a public official or other person acting in an official 

capacity.” 8 C.F.R. § 1208.18(a)(1). At his removal hearing, Medina testified that his 

neighbor, Mr. Perez, accused him of telling Mr. Perez‟s wife that he had been unfaithful, 

and threatened to contact a relative who is a sergeant in the Dominican Republic to have 

Medina killed. Medina further testified that he is likely to be singled out for torture 

because of his status as a criminal deportee. 

The BIA correctly concluded that Medina failed to demonstrate that he was 

eligible for CAT relief.2 As the BIA explained, Medina‟s fears concerning Mr. Perez‟s 

relative are insufficient to demonstrate a likelihood of torture; Mr. Perez made the threat 

only once in the heat of an argument, and Medina did not provide the agency with any 

evidence verifying the identity of the alleged relative. With respect to Medina‟s fear that 

he would be tortured because of his status as a criminal deportee, we note that the country 

conditions evidence does not indicate that the Dominican government targets deportees 

for torture. 

Medina also argues that the BIA erred in deeming him ineligible for cancellation 

 

2 We have jurisdiction to review the application of the law governing CAT protection to 

the undisputed facts. Cf. Silva–Rengifo v. Att‟y Gen., 473 F.3d 58, 63 (3d Cir. 2007) 

(citing Kamara v. Att‟y Gen., 420 F.3d 202, 211 (3d Cir. 2005), for the proposition that 

the “jurisdictional grant regarding appeals by aggravated felons extends not just to legal 

determinations but also to application of law to facts”).
5

of removal under 8 U.S.C. § 1229b(a) on the ground that he had been convicted of two 

“aggravated felon[ies],” as that term is defined in 8 U.S.C. §§ 1101(a)(43)(F) and (G), 

because those definitions, which he claims were amended by the IIRIRA in 1996, cannot 

be applied retroactively to crimes committed beforehand.3 This argument is, however, 

foreclosed by our decision in Biskupski v. Att‟y Gen., 503 F.3d 274, 278 (3d Cir. 2007) 

(explaining that “Congress expressly mandated that the changes made to the term 

„aggravated felony‟ in 8 U.S.C. § 1101(a)(43)” applied to crimes committed before the 

enactment of IIRIRA).4

Medina does not meaningfully challenge any other aspect of the BIA‟s decision on 

appeal. Accordingly, we will deny the petition for review. 

 

3 Although we generally lack jurisdiction to review final orders of removal against an 

alien removable as an aggravated felon, we retain jurisdiction to review questions of law. 

8 U.S.C. § 1252(a)(2)(D). Whether a statute has retroactive application and issues of 

statutory construction are questions of law over which we exercise plenary review. See

Park v. Att‟y Gen., 472 F.3d 66, 70-71 (3d Cir. 2006). 

4

To the extent that Medina purports to challenge the BIA‟s determination that he was 

ineligible for asylum and withholding of removal because he had been convicted of a 

“particularly serious crime,” see 8 U.S.C. §§ 1158(b)(2)(A)(ii) & (b)(2)(B)(i); 

§§ 1231(b)(3)(B)(ii) & (b)(3)(B) (last paragraph), we note that he failed to present this 

argument to the BIA. Therefore, we lack jurisdiction to review it. See 8 U.S.C. 

§ 1252(d)(1).