Not for Publication in West's Federal Reporter

United States Court of Appeals

For the First Circuit

No. 14-1439

YA PAO VANG,

Petitioner,

v.

LORETTA E. LYNCH,*

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF

THE BOARD OF IMMIGRATION APPEALS

Before

Torruella, Thompson, and Barron,

Circuit Judges.

John H. Ruginski, Jr., on brief for petitioner.

Sunah Lee, Trial Attorney, Office of Immigration Litigation,

Civil Division, U.S. Department of Justice, Joyce R. Branda, Acting

Assistant Attorney General, Civil Division, and Cindy S. Ferrier,

Assistant Director, Office of Immigration, on brief for respondent.

July 17, 2015

* Pursuant to Fed. R. App. P. 43(c)(2), Attorney General

Loretta E. Lynch is substituted for former Attorney General Eric H.

Holder, Jr. as respondent.
TORRUELLA, Circuit Judge. Petitioner Ya Pao Vang

("Vang"), a Laotian native and citizen, seeks our review of an

order of the Board of Immigration Appeals ("BIA") affirming an

Immigration Judge's ("IJ") decision denying Vang's applications for

withholding of removal and for protection under the Convention

Against Torture. Unfortunately for Vang, however, his removal is

based on a conviction for an aggravated felony and he raises no

colorable legal or constitutional claims. Thus, we lack

jurisdiction to review these denials and must dismiss his petition.

I. Background

Vang is a native and citizen of Laos who was admitted to

the United States as a refugee on July 31, 1986, and became a

lawful permanent resident on January 15, 1988. Approximately ten

years after entering the United States, on May 21, 1996, Vang was

convicted, pursuant to a plea agreement, of assault with a

dangerous weapon under section 11-5-2 of the General Laws of Rhode

Island. He was given a suspended sentence of five years'

imprisonment and five years of probation.

Removal proceedings against Vang began on September 25,

2008, when the Department of Homeland Security filed a Notice to

Appear charging Vang with removability under

section 237(a)(2)(A)(iii) of the Immigration and Nationality Act

("INA"), 8 U.S.C. § 1227(a)(2)(A)(iii). The basis of this charge

was Vang's Rhode Island conviction, a conviction which qualified as

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an aggravated felony under the INA.1 Vang conceded that this

conviction made him removable as charged, but he nevertheless

sought withholding of removal under section 241(b)(3) of the INA,

8 U.S.C. § 1231(b)(3), and protection under the Convention Against

Torture.2

A hearing was held before an IJ on December 22, 2011,

during which Vang and his father both testified. Each stated that

he feared Vang would be persecuted if returned to Laos due to

Vang's father's prior military service. However, neither Vang nor

his father could identify who would harm Vang upon his return. 

Moreover, Vang's father testified that he and Vang's brother had

recently visited Laos for three to four weeks without incident. 

After considering this testimony, as well as the State Department's

Country Reports on Laos which indicated that there had been

1 Section 101(a)(43)(F) of the INA, 8 U.S.C. § 1101(a)(43)(F),

defines an aggravated felony as "a crime of violence (as defined in

section 16 of Title 18, but not including a purely political

offense) for which the term of imprisonment [is] at least one

year." 18 U.S.C. § 16, meanwhile, defines a "crime of violence" as

either

(a) an offense that has as an element the use, attempted

use, or threatened use of physical force against the

person or property of another, or

(b) any other offense that is a felony and that, by its

nature, involves a substantial risk that physical force

against the person or property of another may be used in

the course of committing the offense.

2

 Vang also initially sought relief under section 212(c) of the

INA, but the parties agreed that he was ineligible.

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significant changes in the country's conditions, the IJ denied

Vang's applications. Regarding his application for withholding of

removal, it found that Vang did not demonstrate a clear probability

that he would be persecuted in the future if returned to Laos. 

Similarly, the IJ denied Vang's application under the Convention

Against Torture after concluding that Vang "set forth absolutely no

facts or circumstances" showing that it was more likely than not

that Vang would be tortured if returned to Laos.

On January 20, 2012, Vang appealed the IJ's denial of his

applications. The BIA affirmed on March 19, 2014, holding that the

"Immigration Judge correctly concluded that [Vang] did not

demonstrate a clear probability that he [would] be persecuted in

the future if returned to Laos" and that Vang also "did not

establish through objective evidence that it is more likely than

not that he would be subject to torture in Laos by or with the

acquiescence (including willful blindness) of a government official

or person working in an official capacity." This timely appeal

followed.

II. Discussion

The BIA's decision is a final agency order, so we would

ordinarily review it using traditional standards of agency review.3

In other words, we would test the BIA's factual determinations

3 Where the BIA adopts parts of the IJ's decision, we also review

the adopted portion of the IJ's decision as if it were part of the

BIA's. Gourdet v. Holder, 587 F.3d 1, 5 (1st Cir. 2009).

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under the deferential "substantial evidence" standard and its legal

conclusions de novo, while still giving deference to the BIA's

interpretation of the statutes and regulations that it administers. 

Arévalo-Girón v. Holder, 667 F.3d 79, 81 (1st Cir. 2012). However,

because Vang is removable by reason of his conviction of an

aggravated felony, our jurisdiction is circumscribed to questions

of law and to constitutional claims. INA § 242(a)(2)(C), 8 U.S.C.

§ 1252(a)(2)(C) ("[N]o court shall have jurisdiction to review any

final order of removal against an alien who is removable by reason

of having committed a criminal offense covered in section . . .

1227(a)(2)(A)(iii) . . . of this title . . . ."); INA

§ 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D) ("Nothing in subparagraph

. . . (C) . . . which limits or eliminates judicial review, shall

be construed as precluding review of constitutional claims or

questions of law raised upon a petition for review filed with an

appropriate court of appeals . . . ."); see also Telyatitskiy v.

Holder, 628 F.3d 628, 630 (1st Cir. 2011); Larngar v. Holder, 562

F.3d 71, 75 (1st Cir. 2009).

Recognizing this, Vang asserts that the IJ and BIA

violated his right to due process by failing to consider certain

evidence and by imposing too high of a burden -- legal errors he

claims we retain jurisdiction to review. But simply rebranding a

factual challenge as a legal one does not make it so. See

Jaquez v. Holder, 758 F.3d 434, 435 (1st Cir. 2014) ("Simply

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describing these factual arguments as a claim that the agency

committed an error of law is insufficient to confer

jurisdiction."); Hasan v. Holder, 673 F.3d 26, 33 (1st Cir. 2012)

("We have repeatedly held that '[c]loaking [a factual claim] in the

garb of legal error does not alter its nature.'" (alterations in

original) (quoting Ayeni v. Holder, 617 F.3d 67, 73 (1st Cir.

2010))). Vang must assert a colorable due process claim to invoke

our jurisdiction, and he fails to do so.

A petitioner's right to due process entails, at its core,

"the right to notice of the nature of the charges and a meaningful

opportunity to be heard." Choeum v. INS, 129 F.3d 29, 38 (1st Cir.

1997). Here, Vang never alleges that he did not receive notice or

that he was unable to be heard. Nor could he, since he not only

received proper notice, but he was also provided a hearing where he

presented witnesses and submitted evidence. See INA § 240, 8

U.S.C. § 1229a(b)(4)(B) ("In proceedings under this section, under

regulations of the Attorney General -- the alien shall have a

reasonable opportunity to examine the evidence against the alien,

to present evidence on the alien's own behalf, and to cross-examine

witnesses presented by the Government . . . ."); Muñoz-Monsalve v.

Mukasey, 551 F.3d 1, 6 (1st Cir. 2008) ("[F]undamental fairness

means in general terms that the alien must have a meaningful

opportunity to present evidence and be heard by an impartial

judge.").

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Instead, Vang's contentions are that the IJ and BIA

failed to consider the Country Reports on Laos and that they

imposed the incorrect burden by requiring Vang to identify the

specific people who would cause him harm. The IJ and BIA did no

such thing. The IJ specifically referred to the Country Reports in

its Analysis and Findings, noting that the Country Reports show

"that there have been significant changed country conditions" in

Laos and that "based on all of these facts and circumstances,"

Vang's petition must be denied. (Emphasis added). The BIA,

meanwhile, added that "[w]hile [Vang] argues that the 2010 United

States Department of State Human Rights Report for Laos shows that

human rights abuses occur in that country, he has not identified

portions of the report that would tend to establish that he is

likely to be mistreated." (Citations omitted).

As for Vang's second contention, neither the IJ nor the

BIA stated that Vang was specifically required to identify his

assailants in order to have his petition granted. To the contrary,

each found that the inability of Vang to identify the source of his

fears of persecution and torture was just one factor -- along with

the Country Reports and Vang's father's testimony that neither he

nor Vang's brother were threatened during their recent trip -- that

led it to conclude that Vang did not carry his burden of

establishing that it is more likely than not that his life or

freedom would be threatened (for his application for withholding)

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or that he would be tortured (for his application under the Convention

Against Torture).

At the end of the day, these alleged "due process" claims boil

down to no more than a disagreement with the factual findings made by the

IJ and BIA: Vang believes more weight should have been given to the

Country Reports and less weight should have been given to his inability

to pinpoint his fear and to his relatives' recent safe travels in Laos. 

This is exactly the type of reweighing of evidence and of fact-finding

that we are jurisdictionally precluded from engaging in. See Hasan, 673

F.3d at 33 ("The very heart of Petitioners' claim, that the BIA's

analysis regarding their fears . . . was not 'detailed' and failed to

'adequately' address the issue, is fundamentally an objection to a

factual determination by the BIA and the relative evidentiary weight the

agency gave to competing considerations."); Telyatitskiy, 628 F.3d at 631

("He first argues that by failing to reference record evidence of police

brutality against Jews in Ukraine, the IJ must have failed to consider

that evidence entirely. A full and fair reading . . . however, suggests

that this . . . argument is little more than a thinly disguised claim

concerning evidentiary weight, which we are statutorily barred from

reviewing.").

III. Conclusion

Accordingly, we lack jurisdiction to consider Vang's petition

and therefore dismiss it.

DISMISSED.

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