NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 16-3388

___________

KENNY MANUEL ESTEVEZ-ACOSTA,

Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA,

Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A099-559-840)

Immigration Judge: Honorable Walter Durling

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

March 16, 2017

Before: AMBRO, KRAUSE and NYGAARD, Circuit Judges

(Opinion filed: March 17, 2017)

___________

OPINION*

___________

PER CURIAM

Kenny Manuel Estevez-Acosta, a citizen of the Dominican Republic who is 

 

* 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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proceeding pro se, petitions for review of a final order of removal. For the following 

reasons, we will deny the petition.

Estevez-Acosta entered the United States in 2009 with a visa obtained by his 

fiancé, a United States citizen. He later became a lawful permanent resident. In 2014, 

Estevez-Acosta was convicted in federal court of conspiracy to distribute heroin. 21 

U.S.C. §§ 841(b)(1)(C) and 846. The Department of Homeland Security issued a notice 

to appear charging that Estevez-Acosta was subject to removal because he was convicted 

of an aggravated felony, 8 U.S.C. § 1227(a)(2)(A)(iii), as defined under 8 U.S.C. 

§ 1101(a)(43)(B) (illicit trafficking in a controlled substance), and § 1101(a)(43)(U) 

(attempt or conspiracy to commit an aggravated felony), and for having been convicted of 

a controlled substance offense, 8 U.S.C. § 1227(a)(2)(B)(i). An Immigration Judge (IJ) 

sustained the charges. 

Estevez-Acosta applied for deferral of removal under the Convention Against 

Torture (CAT). He alleged that the police in the Dominican Republic tortured him in 

2001 when questioning him about possible involvement in drug and human trafficking, 

and that, after his release from custody, the police sought him out when he failed to 

regularly report to them, as he had been instructed. The IJ did not condone EstevezAcosta’s mistreatment while in police custody and noted that the intentional infliction of 

pain by the officers to secure a confession or information would qualify as torture. The IJ 

explained, however, that Estevez-Acosta failed to show that it is likely that he would 

suffer torture in the future. Although the police had asked Estevez-Acosta’s brother of 
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his whereabouts in connection with his agreement to report to them, the IJ noted that the 

police had never threatened Estevez-Acosta after he was released.

1

 

Estevez-Acosta, through counsel, filed an appeal to the Board of Immigration 

Appeals’ (BIA or Board). The Board found no clear error in the IJ’s factual findings 

regarding the likelihood that Estevez-Acosta would be tortured upon return to the 

Dominican Republic. Like the IJ, the BIA did not condone the harm that Estevez-Acosta 

described, but stated that the record did not support finding a likelihood that he would 

again be subject to abusive treatment. Emphasizing that police never threatened him after 

his release in 2001, the BIA held that Estevez-Acosta’s claim was “too speculative to 

warrant a grant of protection under the [CAT].” Estevez-Acosta filed a pro se petition for 

review of the BIA’s decision. 

The Government asserts that we should dismiss the petition for review for lack of 

jurisdiction on the ground that Estevez-Acosta has not raised “colorable constitutional or 

legal issues.” We generally lack jurisdiction to review a final order of removal against a 

criminal alien, like Estevez-Acosta, who is removable for having committed an offense 

covered in § 1227(a)(2). See 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 

 

1 The IJ also rejected Estevez-Acosta’s reliance on three incidents that occurred after his 

release from custody: the discovery of a bullet hole in his car; being followed by two 

men on a motorcycle who yelled his name and who may have shot at him; and suffering 

minor injuries when an unmarked police vehicle hit his motorcycle. The IJ noted that 

Estevez-Acosta did not identify exactly when the incidents occurred, present evidence 

that the incidents were related, or demonstrate that the police were involved. 
4

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 8 U.S.C. § 1252(a)(2)(D). “[F]actual or 

discretionary determinations continue to fall outside [our] jurisdiction . . . .” 

Sukwanputra v. Gonzales, 434 F.3d 627, 634 (3d Cir. 2006). With respect to CAT 

claims, the question of the likelihood of torture is a mixed one, comprised of a factual 

component (“what is likely to happen to the petitioner if removed”) and a legal one 

(“does what is likely to happen amount to the legal definition of torture”). Kaplun v. 

Att’y Gen., 602 F.3d 260, 271 (3d Cir. 2010)

Estevez-Acosta primarily argues that the BIA erred in concluding that he failed to 

establish that the Dominican Republic government would acquiesce in his torture. In 

particular, Estevez-Acosta asserts that the BIA “applied the wrong legal standard” and 

“misconstrued the meaning of acquiescence.” Notably, however, the Board did not make 

any findings with respect to whether the alleged torture would 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 capacity.”2 8 C.F.R. § 1208.18(a)(1). Rather, the denial of CAT 

relief was based on the conclusion that “the record does not support finding a likelihood 

that [Estevez-Acosta] would again be subject to . . . abusive treatment if returned to the 

Dominican Republic.” The decision that Estevez-Acosta failed to establish that the 

torture he feared was more likely than not to occur is a factual decision that we lack 

 

2 This requirement is one of five used to determine whether an act constitutes torture. 
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jurisdiction to review. See Roye v. Att’y Gen., 693 F.3d 333, 343 n.12 (3d Cir. 2012).

Estevez-Acosta also claims that the Board, in determining whether he established 

eligibility for CAT relief, failed to consider evidence of country conditions in the 

Dominican Republic.3 The allegedly overlooked evidence concerns the police’s use of 

torture to obtain confessions and the security force’s involvement in unlawful killings. In 

assessing whether it is more likely than not that an applicant would be tortured in the 

proposed country of removal, “all evidence relevant to the possibility of future torture 

shall be considered . . . .” 8 C.F.R. § 1208.16(c)(3). The Board did not specifically 

address the country conditions evidence that Estevez-Acosta highlights. Notably, though, 

the BIA is not obligated to specifically address each piece of documentary evidence in its 

opinion. Toussaint v. Att’y Gen., 455 F.3d 409, 414 (3d Cir. 2006). The Board is 

required, however, to consider all relevant evidence and provide an adequate basis from 

which we are able “to discern its reasons for declining to afford relief to a petitioner.” 

Zheng v. Att’y Gen., 549 F.3d 260, 268 (3d Cir. 2008). We are satisfied that the Board 

 

See Pieschacon-Villegas v. Att’y Gen., 671 F.3d 303, 310 (3d Cir. 2011). 

3 Construing this claim liberally, we conclude that we have jurisdiction to review it. See

Green, 694 F.3d at 508 (examining the merits of a criminal alien’s claim that “IJ and BIA 

committed legal error by ignoring relevant evidence in the record . . . .”). But, to the 

extent that Estevez-Acosta challenges the weight that the agency gave to his evidence 

when evaluating his eligibility for CAT relief, see id. (recognizing that petitioner’s “real 

argument is not that relevant evidence was ignored, but rather that the IJ incorrectly 

weighed evidence in making factual determinations.”), we lack jurisdiction over such a 

claim. Pieschacon-Villegas, 671 F.3d at 309 (noting that court lacks jurisdiction to 

review criminal alien’s disagreement with BIA’s determination that his evidence is 

insufficient to demonstrate eligibility for CAT relief.).
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did so here. As noted, the BIA’s decision was based in large part on the conclusion that 

Estevez-Acosta had not been threatened by the Dominican Republic police after he was 

released from custody in 2001. The country conditions evidence does not bear directly 

on that conclusion. Cf. Poradisova v. Gonzales, 420 F.3d 70, 81 (2d Cir. 2005) (holding 

that the BIA has a duty to explicitly consider country conditions evidence that 

“materially bears on [an applicant’s] claim”) (emphasis added). 

For these reasons, we will dismiss in part and deny in part Estevez-Acosta’s 

petition for review.