2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-10-2011

Octavio Ramirez v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-1137

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1

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 10-1137

___________

OCTAVIO LUIS RAMIREZ,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A029-589-447)

Immigration Judge: Honorable Jeffrey L. Romig

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

January 3, 2011

Before: AMBRO, HARDIMAN AND STAPLETON, Circuit Judges

(Opinion filed: February 10, 2011)

___________

OPINION

___________

PER CURIAM

Petitioner Octavio Ramirez petitions for review of the December 28, 2009 

decision of the Board of Immigration Appeals (“BIA”) to dismiss his appeal and affirm 

the Immigration Judge’s denial of his application for deferral of removal under the 
2

Convention Against Torture. The Government has moved to dismiss the petition for lack 

of jurisdiction. For the reasons that follow, we will grant in part and deny in part the 

Government’s motion to dismiss. To the extent that we have jurisdiction, we will deny

Ramirez’s petition for review. 

I.

Ramirez, a native of Nicaragua, was admitted to the United States as a lawful 

permanent resident of the United States in 2000. In 2002, Ramirez pleaded guilty in the 

United States District Court for the Southern District of Florida of conspiracy to import 

five kilograms or more of cocaine in violation of 21 U.S.C. § 963.1

Ramirez, proceeding pro se, conceded removability and filed an application for

asylum, withholding of removal, and for deferral of removal under the Convention

Against Torture (“CAT”).

 Based on his 

conviction, the Department of Homeland Security commenced removal proceedings 

against Ramirez pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) (conviction of an aggravated 

felony) and 8 U.S.C. § 1227(a)(2)(B) (conviction of a controlled substance violation). 

2

 1 Ramirez was convicted and sentenced to 135 months of imprisonment and is 

currently in federal custody serving that sentence. 

2 Venue was changed from Florida to Pennsylvania in January 2008 and removal 

proceedings were completed in York, Pennsylvania. 

The Immigration Judge (“IJ”) held that because Ramirez had

been convicted of a felony relating to a drug trafficking crime, he was not eligible for

asylum under INA § 208(b)(2)(B)(i). The IJ further held that because the conviction

involved more than a five-year sentence, the conviction was a “particularly serious 
3

crime” which rendered him ineligible for withholding of removal under INA § 

241(b)(3)(B)(ii). The IJ denied relief with respect to Ramirez’s remaining request for 

deferral of deportation under CAT because he concluded Ramirez had not met his burden 

of proof. 

Ramirez’s claim under the CAT is based primarily on his testimony and that of his 

former attorney that he provided information to a prosecutor for the government of 

Nicaragua concerning Arnoldo Aleman, the former president of Nicaragua. Aleman was 

convicted of money laundering and corruption and sentenced to a 20-year term of 

imprisonment beginning in December 2003. The sentence was commuted in 2005 due to 

Aleman’s poor health. Ramirez believes that Aleman, or persons associated with him, 

will seek vengeance against Ramirez if he returns to Nicaragua. In denying his CAT 

claim, the IJ found that Ramirez established a subjectively genuine fear of returning to 

Nicaragua based on his having served as an informant against the former President, but 

had failed to show a “clear probability” of torture in the event of his return to Nicaragua. 

Ramirez appealed the IJ’s decision to the BIA. The BIA conducted a de novo 

review of the IJ’s application of law to the facts, and affirmed the IJ’s conclusion that

Ramirez failed to establish that he would more likely than not face torture by, or with the 

acquiescence of, a member of the government of Nicaragua. Ramirez then filed the 

instant petition for review. The Government filed a motion to dismiss the petition for 

lack of jurisdiction. 

II.
4

Although we generally lack jurisdiction to review final orders of removal against 

aliens who, like Ramirez, are removable for having committed an aggravated felony, see

8 U.S.C. § 1252(a)(2)(C), we nonetheless have jurisdiction to review “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) (quotation marks and citations omitted); see 8 U.S.C. § 1252(a)(2)(D). We review 

such questions of law de novo. Kamara, 420 F.3d at 211. 

The Government argues that dismissal is warranted here because Ramirez does not 

raise any legal questions. We disagree. His petition alleges that the IJ erred as a matter 

of law in relying on In re J-F-F-, 23 I. & N. Dec. 912, 917-18 (AG 2006), to deny his

claim under the CAT. He also argues that the IJ and the BIA misapplied the CAT 

standard to the undisputed facts of this case.3

An alien seeking relief under the CAT must demonstrate that it is “more likely 

than not” that he will be tortured in the event of return to a designated country. 8 C.F.R. 

§ 1208.16(c)(2). The applicant must show that the torture will be inflicted “by or at the 

 

III.

 3 Ramirez claims that the IJ improperly failed to consider whether the Nicaraguan 

government would acquiesce to his torture, and that the United States government 

breached its agreement to protect him as a witness. Because Ramirez’s CAT 

claim was denied on other grounds, these arguments were not reached by the 

agency and need not be addressed here. Furthermore, to the extent that these are 

claims “that an Immigration Judge or the BIA incorrectly weighed evidence, failed 

to consider evidence or improperly weighed equitable factors,” they are not 

questions of law that we have jurisdiction to review under § 1252(a)(2)(D). 
5

instigation of or with the consent or acquiescence of a public official or other person 

acting in an official capacity.” 8 C.F.R. §§ 1208.18(a)(1), (7); see also Silva-Rengifo v. 

Att’y Gen., 473 F.3d 58, 70 (3d Cir. 2007). In assessing whether the applicant has met 

this burden of proof, the agency must consider all evidence relevant to the possibility of 

future torture. 8 C.F.R. § 1208.16(c)(3). 

Ramirez argues that the IJ erred as a matter of law by placing too much emphasis 

on the decision of In re J-F-F-, in which the Attorney General stated that a petitioner may 

not establish a claim for CAT relief merely by stringing together a series of suppositions 

to show that it is more likely than not that torture will result where the evidence does not 

establish that each step in the hypothetical chain of events is more likely than not to 

occur. 23 I. & N. Dec. 912, 917-18 (AG 2006). We disagree. See, e.g., Savchuck v. 

Mukasey, 518 F.3d 119, 123-24 (2d Cir. 2008). The IJ committed no legal error in 

analyzing Ramirez’s CAT claim as a series of hypothetical events (e.g., that Aleman will 

seek vengeance against him based on his cooperation, and that the Nicaraguan 

government would acquiesce in this).

4

 

Jarbough v. Att’y Gen., 483 F.3d 184, 189 (3d Cir. 2007). 4 We note that Ramirez argued before the IJ that certain segments of Nicaraguan 

society already knew that he had offered information to be used against Aleman. In 

support of this contention, Ramirez offered evidence that a Nicaraguan journalist had 

earlier attempted to communicate with him to ask about the same. Thus, the 

allegation that his cooperation was already known to at least some Nicaraguans is not 

properly characterized as a hypothetical or contingent event. However, the IJ’s 

approach concerning the remainder of Ramirez’s claim – that Aleman or his 

supporters are likely to kill him because of this cooperation, and that the Nicaraguan 

government would acquiesce – was correct.

 The IJ evaluated each of Ramirez’s suppositions
6

and concluded that he had not established that it is well known within Nicaragua that his 

cooperation led to Aleman’s conviction, or that anyone in Nicaragua will seek to torture 

him when he returns because of his cooperation; thus, he had not demonstrated a “clear 

probability” of torture in Nicaragua.

5

 5 The “clear probability standard” is equivalent to the “more likely than not 

standard.” See Gomez-Zuluaga v. Att’y Gen., 527 F.3d 330, 349 (3d Cir. 2008). 

Further, the BIA applied the correct legal standard in its opinion dismissing 

Ramirez’s appeal. The BIA properly reviewed the IJ’s factual findings for clear error and 

conducted a de novo review of the IJ’s application of law to the facts. The BIA 

determined that Ramirez failed to establish that he would “more likely than not” face 

torture by or with the acquiescence of a member of the Nicaraguan government. The 

BIA’s conclusion was based on the IJ’s factual findings that (1) Ramirez’s cooperation 

with authorities occurred in 2004, after Aleman’s conviction in Nicaragua in 2003; (2) 

there was insufficient evidence to establish that Ramirez’s cooperation had been made 

public in Nicaragua; (3) there was no evidence that the Nicaraguan prosecutor used any 

of the evidence provided by Ramirez in the prosecution of former President Aleman; (4) 

there was no evidence that Ramirez had received threats from former President Aleman 

or his associates; and (5) there was no indication that Aleman or anyone else would have 

any interest in torturing him following his return. Having reviewed the record, we are 

confident that the BIA considered all of the evidence and properly applied the CAT 

standard. 
7

IV.

We agree with the Government that we lack jurisdiction over the remainder of 

Ramirez’s petition. 8 U.S.C. § 1252(a)(2)(C). Accordingly, we deny the petition to the 

extent it argues that the IJ or the BIA misapplied the relevant legal standard to Ramirez’s 

CAT claim, and dismiss the remainder of the petition.