2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-4-2013

Jose Vasquez v. Attorney General United States

Precedential or Non-Precedential: Non-Precedential

Docket No. 12-1957

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 12-1957

___________

JOSE LUIS VASQUEZ,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A042-889-147)

Immigration Judge: Honorable Walter A. Durling

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

January 23, 2013

Before: FUENTES, HARDIMAN AND VAN ANTWERPEN, Circuit Judges

(Opinion filed February 4, 2013)

_________

OPINION

_________

PER CURIAM

Petitioner Jose Luis Vasquez, a citizen of the Dominican Republic who is present 

in the United States as a lawful permanent resident, seeks review of a Board of 

Immigration Appeals (BIA) order denying relief from removal and declining to reopen 
2

the evidentiary record. We will dismiss in part and deny in part his petition for review.

After pleading guilty in 2009 to one count of trafficking a Mercedes Benz with an 

altered Vehicle Identification Number (in violation of 18 U.S.C. § 2321, see S.D.N.Y. 

Crim. No. 1:08-cr-00988), Vasquez was placed into deportation proceedings. One basis 

for his removal was the aforementioned conviction, which rendered him an aggravated 

felon under the Immigration and Nationality Act. See Administrative Record (A.R.) 707 

(citing 8 U.S.C. §§ 1101(a)(43)(R) and 1227(a)(2)(A)(iii)). Vasquez sought withholding 

of removal relief (―withholding‖) and protection under the United Nations Convention 

Against Torture (―CAT‖). He claimed to fear retribution from the co-defendants in his 

federal case, who had close ties with the ―Trinitarios‖ gang and—based on their belief 

that he cooperated with the United States Government—threatened him with harm should 

he ever return to the Dominican Republic.

1

 

Vasquez‘s applications for relief were unsuccessful. While concluding that 

Vasquez and his girlfriend had testified credibly, an Immigration Judge (IJ) nevertheless 

determined that 1) the mistreatment feared by Vasquez was not on account of his 

membership in a ―social group‖ as defined in 8 U.S.C. § 1231(b)(3)(A); and 2) while the 

Dominican government was ―rife with corruption problems . . . [the record] is wholly 

lacking . . . i[n] any corroboration that the government of the Dominican Republic is 

somehow influenced or infiltrated by the Trinitarios gang‖ and would therefore be 

―unable to unwilling to prevent‖ harm to Vasquez. A.R. 139–42. The IJ also found ―no 
3

evidence that the government would likely torture [Vasquez] upon his return‖ to the 

country, or would otherwise acquiesce or be willfully blind to torture by others. A.R. 

143–45. Vasquez sought review from the BIA, and also submitted a motion to 

remand/reopen the record for ―consideration of new, previously unavailable evidence.‖ 

A.R. 23. The BIA affirmed, and declined to reopen the record because the new 

documents were ―cumulative of evidence previously submitted‖ or otherwise had ―little 

evidentiary value.‖ A.R. 8–10. Vasquez filed a timely petition for review with this 

Court.

Because Vasquez was charged with removability under 8 U.S.C. 

§ 1227(a)(2)(A)(iii), the jurisdiction-stripping provisions of 8 U.S.C. § 1252(a)(2)(C) 

limit our review to ―constitutional claims or questions of law.‖ 8 U.S.C. § 1252(a)(2)(D); 

Roye v. Att‘y Gen., 693 F.3d 333, 339 (3d Cir. 2012). The former must be ―colorable 

violations of the United States Constitution,‖ while the latter must present ―purely legal 

inquiries such as those involved in statutory interpretation‖; both are reviewed de novo, 

subject to applicable principles of deference. Roye, 693 F.3d at 339 (citations, quotations 

omitted). ―[F]actual or discretionary determinations‖ are ―outside of our scope of 

review.‖ Id. To the extent that we do have jurisdiction, because the BIA‘s decision

adopted and expanded upon the IJ‘s decision, we may review both. Chen v. Ashcroft, 

376 F.3d 215, 222 (3d Cir. 2004).

Vasquez‘s arguments are hobbled by our circumscribed jurisdiction. He contends

 

1 Because we write primarily for the parties, and due to the circumscribed nature of our 

review (see infra), we will forgo an extended summary of the facts of the case and 
4

at length that the agency erred by determining that he did not belong to a cognizable 

social group: one consisting of perceived informants who have testified against the 

interests of Dominican gang members and their associates. ―Whether a[] [petitioner‘s]

proffered  ̳particular social group‘ is cognizable . . . is a question of law,‖ and would 

ordinarily be reviewable. Gomez-Zuluaga v. Att‘y Gen., 527 F.3d 330, 339 (3d Cir. 

2008). But the agency also found 1) that the Dominican government has no interest in 

Vasquez beyond his status as a deportee, and 2) that Vasquez had not established that the 

government would be unable or unwilling to control his alleged persecutors, thus failing 

to meet the burden of proof for withholding relief. See A.R. 3–4, 141–42. These are 

issues of fact, not law. See Fiadjoe v. Att‘y Gen., 411 F.3d 135, 153 (3d Cir. 2005); see 

also Ghebrehiwot v. Att‘y Gen., 467 F.3d 344, 351 (3d Cir. 2006) (explaining 

withholding standard). Even if the agency‘s social-group analysis were erroneous, its 

secondary, factual holding would defeat Vasquez‘s applications for relief. Thus, while 

we can reach the legal issue, we must deny the petition as to this claim because we are 

bound by the agency‘s factual determination. The CAT claim, which was denied by the 

agency on substantially similar grounds, suffers from the same deficiencies (e.g., the 

petitioner argues that ―the available evidence is clear that the Dominican government is 

aware of the torture occurring in the country against individuals similarly situated to 

[him]‖—a clear request to review the factual record, which we cannot do) and will also 

 

Vasquez‘s alternative bases for relief. 
5

be denied.2

Vasquez also argues that the BIA erred in denying his motion to remand and 

reopen proceedings. ―The BIA treats a motion to remand for the purpose of submitting 

additional evidence in the same manner as motions to reopen the record.‖ Huang v. Att‘y 

Gen., 620 F.3d 372, 389 (3d Cir. 2010) (citing 8 C.F.R. § 1003.2(c)(4); In re Coelho, 20 

I. & N. Dec. 464, 471 (B.I.A. 1992)). When, as here, the BIA declines to open on the 

grounds that the new proffer is cumulative or otherwise would not nudge the petitioner 

from failure to success, we ordinarily review for abuse of discretion. Id. at 389–90. 

However, as was the case above, we are limited in present circumstances to questions of 

law and constitutional claims. Cf. Hanan v. Mukasey, 519 F.3d 760, 763 (8th Cir. 2008). 

―Garden-variety allegations of factual error such as those presented here‖ cannot suffice 

 

2

In his brief, Vasquez attacks the agency‘s burden-of-proof determination, suggesting 

that it erred by requiring corroboration of his credible testimony; ―[the agency] was 

required to explain why it believed that the evidence it demanded was reasonably 

available to the Petitioner to obtain,‖ but ―[n]o such assertion was made.‖ Pet‘r‘s Br. 14. 

A similar invocation was made during the administrative appeal, see A.R. 116, although 

the BIA did not address the matter in its opinion. Vasquez‘s ―passing reference‖ to this 

question does not clarify upon what grounds he might wish to challenge the agency‘s 

decision, and whether (in turn) those grounds are rooted in fact or law—whether, for 

example, he wishes to allege that the process used in requiring collaboration was in some 

way faulty. Hence, we deem the matter to be waived. See Laborers‘ Int‘l Union v. 

Foster Wheeler Corp., 26 F.3d 375, 398 (3d Cir. 1994); see also 8 U.S.C. § 1252(b)(4) 

(―No court shall reverse a determination made by a trier of fact with respect to the 

availability of corroborating evidence . . . unless the court finds . . . that a reasonable trier 

of fact is compelled to conclude that such corroborating evidence is unavailable.‖); 

Sandie v. Att‘y Gen., 562 F.3d 246, 252 n.2 (3d Cir. 2009) (explaining the corroboration 

mechanism of the REAL ID Act, which applies to this petition).
6

to grant us jurisdiction. Jarbough v. Att‘y Gen., 483 F.3d 184, 190 (3d Cir. 2007).

3

Accordingly, for the foregoing reasons, we will dismiss the petition for review in 

part and deny it in part.

 

3 Because we have seen this mistake in several recent cases, we wish to point out that part 

of the BIA‘s opinion was slightly in error. The BIA held, in part, that an affidavit from 

one Sergio Mendez ―had not been authenticated pursuant to 8 C.F.R. § 1287.6(b)‖, A.R. 

4; however, that regulation only pertains to ―official records.‖ Lin v. Att‘y Gen., 700 

F.3d 683, 686–87 (3d Cir. 2012). As the agency articulated other reasons for rejecting or 

otherwise limiting its reliance on the affidavit, this error is harmless.