2015 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-10-2015

Edwin Serrano Villa v. Attorney General United

States

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"Edwin Serrano Villa v. Attorney General United States" (2015). 2015 Decisions. Paper 165.

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PS3-040 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 14-1701

___________

EDWIN MAURICIO SERRANO VILLA,

a/k/a

JOHN RUIZ

Edwin Mauricio Serrano Villa,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

 Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A090-679-665)

Immigration Judge: Honorable Dorothy A. Harbeck

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

January 5, 2015

Before: FUENTES, SHWARTZ and ROTH, Circuit Judges

(Opinion filed: February 10, 2015)

___________

OPINION*

___________

 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
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PER CURIAM

Edwin Mauricio Serrano Villa, a citizen of Colombia, claims that he entered the 

United States in 1984, when he was around 10 years old. He adjusted his status to lawful 

permanent resident in 1990. In 2008, Serrano Villa was convicted in New Jersey state 

court of possession and distribution of cocaine. The Government charged Serrano Villa 

with removability for having committed an aggravated felony as defined in Immigration 

and Nationality Act (INA) § 101(a)(43)(B) [8 U.S.C. § 1101(a)(43)(B)] (illicit trafficking 

in a controlled substance), see INA § 237(a)(2)(A)(iii) [8 U.S.C. § 1227(a)(2)(A)(iii)], 

and for having been convicted of a controlled substance offense, see INA 

§ 237(a)(2)(B)(i) [8 U.S.C. § 1227(a)(2)(B)(i)]. Serrano Villa conceded his removability 

but sought asylum, withholding of removal, protection under the Convention Against 

Torture (CAT), and cancellation of removal. 

An Immigration Judge (IJ) concluded that Serrano Villa’s convictions rendered 

him ineligible for asylum and withholding of removal, and granted the Government’s 

motion to pretermit Serrano Villa’s application for cancellation of removal because he 

had been convicted of an aggravated felony. The IJ also denied Serrano Villa’s 

application for CAT relief, holding that his claim was based on a “series of suppositions” 

that, because he will be perceived as a wealthy American, he will be a target for criminal 

activity or recruited by criminal organizations. Serrano Villa appealed, challenging only 

the denial of CAT relief. The Board of Immigration Appeals (BIA or Board) dismissed 

the appeal, stating that it found “no clear error in the [IJ’s] conclusion that the record 
3

does not indicate that it is more likely than not that [Serrano Villa] will face torture upon 

his return to Colombia.” Serrano Villa filed a petition for review.

We generally lack jurisdiction to review a final order of removal against an alien, 

like Serrano Villa, who is removable for having committed a criminal offense covered in 

INA § 237(a)(2)(A)(iii) or § 237(a)(2)(B). See INA § 242(a)(2)(C) [8 U.S.C. 

§ 1252(a)(2)(C)]. We retain jurisdiction, however, to review constitutional claims, “pure 

questions of law,” and “issues of application of law to fact, where the facts are 

undisputed and not the subject of challenge.” Kamara v. Att’y Gen., 420 F.3d 202, 211 

(3d Cir. 2005); see also INA § 242(a)(2)(D) [8 U.S.C. § 1252(a)(2)(D)]. 

Serrano Villa argues that the IJ erred in concluding that he had not carried his 

burden of establishing that each factual predicate in his CAT claim was more likely than 

not to occur. What is likely to happen to Serrano Villa if he is removed to Colombia is a 

factual inquiry that is outside this Court’s jurisdiction. See Kaplun v. Att’y Gen., 602 

F.3d 260, 271 (3d Cir. 2010); see also Green v. Att’y Gen., 694 F.3d 503, 506 (3d Cir. 

2012) (holding that Court lacks “jurisdiction to review factual findings underlying a 

removal order against an alien who has committed a controlled substance offense”). 

Therefore, we may not review Serrano Villa’s primary allegation, namely, that he 

sufficiently established that he will be perceived as a wealthy American and that such a 

perception will result in his kidnapping or targeting for criminal activity. 

We can review, however, Serrano Villa’s claim that the Board should have 

reviewed de novo, rather than for clear error, the IJ’s factual finding regarding the 
4

likelihood of future events. See Pareja v. Att’y Gen., 615 F.3d 180, 187-88 (3d Cir. 

2010) (holding that Court has jurisdiction to review whether the BIA applied the correct 

legal standard). In Kaplun, we stated that the BIA “is free to revisit the underlying facts 

(including the likelihood of future events), but it must do so under the clearly erroneous 

standard that applies to facts.” Kaplun, 602 F.3d at 272. Serrano Villa “acknowledges 

that Kaplun supplies the governing law in this appeal[,]” but “disagrees” with that 

decision. Such disagreement is not grounds for relief here, however, because en banc 

consideration is required to overrule the precedent of a prior Panel. See 3d Cir. I.O.P. 

9.1; In re Merck & Co. Sec. Litig., 432 F.3d 261, 274 (3d Cir. 2005). 

For the foregoing reasons, we will dismiss the petition for review in part and deny 

it in part.