10-1956-ag

Vaval v. Holder

BIA

Page, IJ

A029 524 074

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.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Daniel Patrick Moynihan

3 United States Courthouse, 500 Pearl Street, in the City of

New York, on the 8th 4 day of July, two thousand eleven.

5

6 PRESENT:

7 GUIDO CALABRESI,

8 GERARD E. LYNCH,

9 RAYMOND J. LOHIER, JR.,

10 Circuit Judges. 

11 _______________________________________

12

13 JEAN PATRICK VAVAL, a.k.a. PATRICK J.

14 VAVAL, a.k.a. PATRICK SHERISKA, a.k.a.

15 JEAN VAVAE,

16 Petitioner, 

17

18 v. 10-1956-ag

19 NAC 

20 ERIC H. HOLDER, JR., UNITED STATES

21 ATTORNEY GENERAL,

22 Respondent.

23 _______________________________________

24

25 FOR PETITIONER: Fay Y. Parris, New York, New York.

26

27 FOR RESPONDENT: Tony West, Assistant Attorney

28 General; Emily Anne Radford,

29 Assistant Director; Kohsei Ugumori,

30 Attorney, Office of Immigration

31 Litigation, United States Department

32 of Justice, Washington, D.C.
2

1 UPON DUE CONSIDERATION of this petition for review of a

2 decision of the Board of Immigration Appeals (“BIA”), it is

3 hereby ORDERED, ADJUDGED, AND DECREED that the petition for

4 review is DISMISSED.

5 Petitioner Jean Patrick Vaval, a native and citizen of

6 Haiti, seeks review of an April 15, 2010, order of the BIA

7 affirming immigration judge (“IJ”) Alan Page’s November 25,

8 2009, denial of his application for deferral of removal

9 under the Convention Against Torture (“CAT”). In re Jean

10 Patrick Vaval, No. A029 524 074 (B.I.A. April 15, 2010),

11 aff’g No. A029 524 074 (Immig. Ct. N.Y. City Nov. 25, 2009). 

12 We assume the parties’ familiarity with the underlying facts

13 and procedural history of this case.

14 Under 8 U.S.C. § 1252(a)(2)(C), we lack jurisdiction to

15 review any final order of removal against an alien who is

16 removable by reason of having been convicted of an

17 aggravated felony. Although we have never expressly held

18 that this jurisdictional bar applies to claims for deferral

19 of removal under the CAT, we have assumed, without

20 discussion, that it is indeed applicable to such claims. 

21 See De La Rosa v. Holder, 598 F.3d 103, 107 (2d Cir. 2010);

22 see also Poole v. Mukasey, 522 F.3d 259, 262 (2d Cir. 2008). 

23 Thus, because Vaval was found removable as an aggravated
3

1 felon, we find, as we did in Poole, that we lack

2 jurisdiction to consider his challenge to the agency’s

3 denial of his claim for deferral of removal. See 8 U.S.C.

4 § 1252(a)(2)(C); see also Poole, 522 F.3d at 262. 

5 Notwithstanding 8 U.S.C. § 1252(a)(2)(C), we retain

6 jurisdiction to consider any “constitutional claims or

7 questions of law” raised in a petition for review. See 

8 8 U.S.C. § 1252(a)(2)(D). Here, Vaval argues that the

9 agency erred by failing to consider evidence in the record,

10 specifically (1) country conditions evidence documenting

11 human rights abuses in Haiti; (2) the testimony and

12 supporting documentation of his expert witness, Michelle

13 Karshan; and (3) a medical report documenting his

14 preexisting injuries. However, we have rejected the notion

15 that the agency must “expressly parse or refute on the

16 record each individual argument or piece of evidence offered

17 by the petitioner.” Jian Hui Shao v. Mukasey, 546 F.3d 138,

18 169 (2d Cir. 2008); see also Xiao Ji Chen v. U.S. Dep’t of

19 Justice, 471 F.3d 315, 337 n.17 (2d Cir. 2006) (presuming

20 that the agency “has taken into account all of the evidence

21 before [it], unless the record compellingly suggests

22 otherwise”). In any event, both the BIA and the IJ
4

1 explicitly considered the above-cited evidence in finding

2 that Vaval failed to establish his eligibility for deferral

3 of removal. Thus, Vaval’s challenge to the agency’s

4 decision is “essentially a quarrel about fact-finding or the

5 exercise of discretion” rather than a constitutional or

6 legal claim. See Barco-Sandoval v. Gonzales, 516 F.3d 35,

7 39 (2d Cir. 2008). Accordingly, we lack jurisdiction to

8 consider his petition for review. See 8 U.S.C.

9 § 1252(a)(2)(C) and (D); Poole, 522 F.3d at 262. 

10 For the foregoing reasons, the petition for review is

11 DISMISSED. As we have completed our review, any stay of

12 removal that the Court previously granted in this petition

13 is VACATED, and any pending motion for a stay of removal in

14 this petition is DISMISSED as moot.

15 FOR THE COURT: 

16 Catherine O’Hagan Wolfe, Clerk

17

18