NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 17a0393n.06

No. 16-4055

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT MARK WRIGHT, Petitioner,

v. ON PETITION FOR REVIEW FROM THE BOARD OF IMMIGRATION APPEALS JEFFERSON B. SESSIONS, III, Attorney General, Respondent.

_________________________________/ BEFORE: BOGGS, CLAY, and SUTTON, Circuit Judges. CLAY, Circuit Judge. Petitioner Mark Wright (“Wright”), a native and citizen of Jamaica, petitions for review of the decisions of the Board of Immigration Appeals (“BIA”) and an immigration judge (“IJ”) denying his appl ication for relief under the Convention Against Torture and Other Cruel, Inhuman or Degrad ing Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100–20, p. 20, 1465 U.N.T.S. 85; 8 CFR § 208.17. On appe al, Wright argues that the BIA and IJ erred in determining that Wr ight had failed to show that it was more likely than not that he would be subjec t to torture if removed to Jamai ca. Wright argues that we have subject-matter jurisdiction over his peti tion pursuant to 8 U.S.C. § 1252(a)(1). For the reasons set forth below, we DISMISS the petition for lack of subject-matter jurisdiction.No. 16-4055

2 BACKGROUND Wright is a native and citizen of Jamaica. At some point in the past, he entered the United States illegally, but the re cord does not disclose when or where. Wright was granted lawful permanent resident (“LPR”) status on August 29, 2005. After obtaining LPR status, Wright was subsequently convicted of multiple crimes. Most prominently, in 2007, Wright was convicted in the Northern District of Ohio of perjury and submitting a false passport application after he bought, in 2000, a stolen Social Security number and a fake birth certificate to apply for a passport. He also has a California state conviction for drug trafficking after he was caught in possessi on of a large quantity of marijuana. Because of these convictions, on August 23, 2013, the Department of Homeland Security issued a Notice to Appear chargi ng Wright as remova ble under § 237(a) of the Immigration and Nationality Act. Wright conceded the factua l allegations in the Notice to Appear and his removability, but filed applicati ons for asylum, withholding of removal, and relief under the Convention Against Torture. The IJ held an individual hearing on Wr ight’s applications on February 17, 2016. Although the hearing was not tran scribed, Wright concedes that the IJ’s summary of his testimony is accurate: The following is a general summary of the Respondent’s testimony offered at the hearing. Respondent was born August 5, 1970 in Montego Bay, Jamaica. He is Christian. The Respondent is legally marri ed to Michelle Larson but they have been separated for eleven year[s]. He has a new girlfriend with whom he has two children ages ten and one. He has three other children. All of his children were born in the United States. The Respondent’s mother is deceased. His father is 72 years old, lives in Jamaica and is a retired farmer. He has two sist ers who still live in Montego Bay, Jamaica and one sister who lives in Toronto, Ca nada. He has a half-brother through his father whom he does not know. He has another brother, Troy Wright, who is deceased. His brother Troy, died on August 18, 2009 in Montego Bay, Jamaica. Troyworked running a car wash business. He also worked as a referee. He was wellknown and had a nickname of GiGi Rat. Troy was killed at his house. He was holding a gun for a gang member, specifi cally an automatic machine gun. Another gang wanted the gun so they s hot Troy although they did not get the gun. The police later found the gun. The poli ce did not investigate Troy’s death.No. 16-4055

3 Troy had previously lived in the United States and had been deported back to Jamaica in 2008 due to criminal convictions involving guns. He had been back in Jamaica about one year before being killed. After Troy was killed, some gang members contacted the Respondent’s sister and obtained the Respondent’s phone number. They called the Respondent and said he had to pay for the gun. The ga ng members started threatening the Respondent’s family. The Respondent believes if he went back to Jamaica, he would be killed. He would have to go to Montego Bay because that is the only place he knows. Also, if the Respondent is deported, he would have to check in with the police. He believes the police would hold him and tort ure him. The police would not protect him because they are involved in gangs. The Respondent has two criminal convictions . He was convicted in federal court in Cleveland for perjury and a false pass port application. He received two years of probation and six months house arrest. He bought a birth certificate and social security number and [then] applied for a passport in 2000. He was convicted in 2007. It turned out he had purchased a police officer’s birth certificate.

His second conviction stems from an arrest in 2011 in California. He spent four months in jail and had two years of proba tion from this conviction. He had flown to California and a friend picked him up. While driving with this friend, the police stopped them and found marijuana in the car. It was a large quantity of marijuana. The driver of the car was also convicted and deported. The Respondent previously worked as a tow truck operator but no longer has a license so has not been work ing for two years. His girl friend works and travels a lot so he takes care of the children. On cross examination, the Respondent clar ified his California criminal case was from Orange County. He was convicted in August 2012. His brother, Troy, was involved with th e Bone Crusher gang or crew. The Respondent does not know the name of the rival gang because they were from another area. The Respondent believes th e Bone Crusher crew would target him. It is people from the Bone Crusher w ho contacted the Respondent because the gun was expensive. They have contacte d the Respondent 8 to 10 times. He knew the people calling were with the Bone Crus her crew because they told him. The first phone call he received was in September 2009 and the last call was about one month later because the Respondent cha nged his phone number. He has had no contact with them since October 2009. The Respondent has had contact with his olde st sister, Anne Marie. She told him that late last year[], 2015, the Bone Crushe rs contacted her and told her that they still remember the Respondent because he talked tough. The Respondent has a cousin, Sean, who di ed in 2014. He was shot in downtown Montego Bay but it is unknown who killed him. This cousin was close to Respondent’s brother. The Respondent is not sure if he was involved with Bone Crusher crew but his cousin was also caught with a gun. No one else in Respondent’s family was been harmed or threatened.No. 16-4055

4 The Respondent believes that the police did not investigate his c ousin’s death. He believes the police are corrupt and affiliate d with different gangs so they do not investigate certain crimes, including most gang crimes. The Respondent’s sister, Anne Marie, knows more details about what happened. His father knew nothing about the threats against him. He did not know to get a statement from his sister. His fiancée wa s in the room once or twice when he received phone calls but he kept the details from her. Under questioning from the Court, the Re spondent clarified that the problem is the Bone Crusher crew wants money from hi m. They would not ask his sister for the money or bother her because they would not go after a woman. The Respondent’s girlfriend, Shovan Gocan, also testified. She has been living with the Respondent for eleven years and they have two children together. She does IT training related to medical record s and travels six months out the year. Ms. Gocan knew the Respondent’s brothe r, Troy Wright. She knew he was deported and then murdered at his home . She had heard it was gang related.

Ms. Gocan knows that after that the Re spondent received phone calls from his family members but does not know the details. Once the Re spondent’[s] sister called Ms. Gocan as she was trying to ge t ahold of the Respondent. She told Ms. Gocan what had happened and that the gang wanted money from the Respondent. On cross examination, Ms. Gocan said th e phone calls began within a few weeks of the death of Respondent’s brother. The last phone call was years ago. (App. R. 4, Administrative Record, at 29–31.) On April 14, 2016, the IJ filed an order denyi ng all of the relief requested by Wright. Relevant here, the IJ dete rmined that Wright had failed to show that it was more likely than not that he would be tortured if returned to Jamaica. The IJ reasoned that Wright’s fears that he would be harmed by the Bone Crusher gang or th e police were speculative, particularly since he had not heard from the gang in several years. On August 18, 2016, the BIA affirmed the IJ’s order in a brief opi nion, largely echoing the IJ’s reasoning. On September 16, 2016, Wright fi led a timely petition for review. Wright’s petition challenges only the BIA’s denial of relief under the Convention Against Torture.

DISCUSSION

“Article 3 of the Convention Against Torture pr ohibits the return ‘of an alien to a country where it is more likely than not that he will be s ubject to torture by a public official, or at theNo. 16-4055

5 instigation or with the acquiescence of such an official.’” Mostafa v. Ashcroft , 395 F.3d 622, 624–25 (6th Cir. 2005) (quoting Matter of G-A-, 23 I. & N. Dec. 366, 367 (BIA 2002) (en banc) (citations omitted)). Federal regulations define torture as: any act by which severe pain or suffe ring, whether physical or mental, is intentionally inflicted on a person for su ch purposes as obtaining from him or her or a third person information or a confe ssion, punishing him or her for an act he or she or a third person has committed or is suspected of having committed, or intimidating or coercing him or her or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or ac quiescence of a public official or other person acting in an official capacity. 8 C.F.R. § 208.18(a)(1). As the BIA has explained, [i]n determining whether an alien is en titled to protection under the Convention Against Torture, all evidence relevant to the possibility of future torture in the proposed country of removal shall be c onsidered, including, but not limited to: past torture inflicted upon the applicant; ev idence that the applicant could relocate to another part of the country of remova l where he or she is not likely to be tortured; gross, flagrant, or mass violati ons of human rights; and other relevant information regarding conditions in the country of deportation. Matter of G-A- , 23 I. & N. Dec. at 367–68 (c iting 8 C.F.R. § 208.16(c)(3)); see also Mostafa , 395 F.3d at 625. Wright argues that the BIA erred in dete rmining that he has not demonstrated his

entitlement to relief un der the Convention Against Torture. Before we may address Wright’s claim for relief, however, we must first ascertain whether his claim is reviewable at all. The Illegal Immigration Reform and Immigrant Re sponsibility Act of 1996 strips courts of “jurisdiction to review any final order of remova l against an alien who is removable by reason of having committed” a wide variety of listed pr edicate offenses. 8 U.S.C. § 1252(a)(2)(C); see also Ventura-Reyes v. Lynch , 797 F.3d 348, 356–58 (6th Cir. 2015) (holding that the jurisdictional bar app lies as long as an alien is removable, regardless of whether the predicate offense was the reason for removal). Wright concedes that he is removable because he committed a controlled-substance offense, two or more crimes involving moral turpitude, and an aggravated felony, as those te rms are defined in the Immigration and Nationality Act.No. 16-4055

6 Accordingly, we retain jurisdiction only to cons ider any “constitutional claims or questions of law raised upon” his petition for review. 8 U.S.C. § 1252(a)(2)(D). Wright raises only one issue in this appeal . Specifically, he argues that the BIA and IJ erred by concluding, based on the ev idence in the administrative record, that he failed to show that it was more likely than not that he would be tortured if returned to Jamaica. This is a factual argument that does not raise any legal or constituti onal issues. We have repeatedly held that we lack jurisdiction to consider a challenge to the BIA’ s decision that an applicant failed to meet his

burden to warrant relief under the Convention Against Torture. See, e.g. , Tran v. Gonzales , 447 F.3d 937, 943 (6th Cir. 2006) (citing Hamid v. Gonzales , 417 F.3d 642 (7th Cir. 2005) for the proposition that courts lack jurisdiction to consider a “p etitioner’s CAT claim where he urge[s] the court to review whet her the BIA correctly considere d, interpreted, and weighed the evidence presented”); Luambano v. Holder , 565 F. App’x 410, 414 (6th Cir. 2014) (holding that the Court lacked jurisdiction to consider petitio ner’s argument that the “evidence in the record clearly establishes that he is more likely than not to face torture if re moved” (citation, quotation marks, and brackets omitted)); Arestov v. Holder , 489 F. App’x 911, 917 (6th Cir. 2012) (same); Bushati v. Gonzales , 214 F. App’x 556, 558 (6th Cir. 2007) (same); see also Bracamontes v.

Holder , 675 F.3d 380, 389–90 (4th Cir. 2012); Xiao Ji Chen v. U.S. Dep’t of Justice , 471 F.3d 315, 329 (2d Cir. 2006); Martinez-Rosas v. Gonzales , 424 F.3d 926, 930 (9th Cir. 2005). Accordingly, we lack jurisdiction to grant Wright the relief he seeks.

CONCLUSION

For the foregoing reasons, we DISMISS Wright’s petition for lack of subject matter jurisdiction.