Green v. Attorney General of the United States, No. 11-3732; Third Circuit; opinion by Barry, C.J.; decided July 13, 2012. On petition for review of an order of the Board of Immigration Appeals. D.D.S. No. 51-8-7703 [9 pp.]

Fitzroy Green, a native and citizen of Jamaica, was a lawful permanent resident when he pled guilty on charges of possession of a controlled dangerous substance with intent to distribute. Two years later he pleaded guilty to a second charge of possession and distribution of CDS. The Department of Homeland Security then charged him with being removable from the United States as an alien who had been convicted of a CDS offense. The Immigration Judge found him removable as charged.

Green then filed an application for deferred removal under the United Nations Convention Against Torture (CAT). He testified that he feared that he would be tortured by the Shower Posse, a powerful Jamaican drug gang, because, after witnessing a group of gunmen kill a suspected police informant and the police officer guarding him, he gave police a statement identifying the killers as members of the Shower Posse. He said that as a result of his cooperation, his sister and brother were killed and he was attacked, after which he left Jamaica for the United States.

The IJ found Green’s testimony to be credible but denied his application. She reasoned that even assuming that the Shower Posse sought revenge against Green, he had failed to establish that it would be acting on behalf of the government or that the government would acquiesce in its actions. The BIA affirmed.

On appeal, Green (1) challenges the IJ’s factual determination that potential retribution by the Shower Posse would not be attributable to the Jamaican government; (2) asserts that neither the BIA nor the IJ completed the two-pronged analysis mandated by Kaplun v. Attorney General of the United States, 602 F.3d 260 (3d Cir. 2010); and (3) claims that neither the BIA nor the IJ considered the totality of the evidence relevant to the likelihood of his torture.

Held: Because the court does not have jurisdiction to consider Green’s challenge to the IJ’s factual determinations; Kaplun does not require that the IJ make factual findings on both prongs of the analysis it set forth; and the IJ considered the totality of the relevant evidence, Green’s petition for review of the BIA’s denial of his application is denied.

CAT provides that no state shall return a person to another state where there are substantial grounds to believe that he would be in danger of being tortured. Caselaw holds that for an act to be torture under the CAT it must be, inter alia, at the instigation of or with the consent or acquiescence of a public official having custody or physical control of the victim.

The court says Green’s argument is aimed directly at the IJ’s factual determination, adopted by the BIA, that the Jamaican government would not consent to or acquiesce in potential retributive violence by the Shower Posse. However, under 8 U.S.C. § 1252(a)(2)(D), the court’s jurisdiction over final orders of removal is limited to constitutional claims or questions of law. It does not have jurisdiction over whether a factual finding was supported by substantial evidence. Thus, the court lacks jurisdiction to consider Green’s argument.

Kaplun said that whether future torture is likely turns on what is likely to happen to the petitioner if removed and whether what is likely to happen amounts to torture. The IJ (and the BIA) assumed that the Shower Posse would try to harm Green. He complains that the IJ and the BIA erred in not making an actual factual finding on that point.

The court rejects the argument because Green failed to raise it before the BIA. Moreover, Kaplun does not specifically require the IJ to make an actual finding as to each prong of the test. It states only that there are two parts to the analysis that should be examined separately. Green bears the burden of showing that he would likely suffer harm if returned and that the harm would meet the legal definition of torture. Because the IJ and the BIA determined that he failed to satisfy the second prong, there was no need to make a factual finding as to the first. Thus, the argument that the IJ and BIA misapplied Kaplun is without merit.

Finally, the court says Green’s argument that the IJ and BIA ignored relevant evidence fails because he never identifies any evidence that was overlooked. Instead, his real argument is that the IJ incorrectly weighed evidence in making factual determinations, which the court lacks jurisdiction to consider.

Moreover, the court says the IJ did consider all relevant evidence. Although her opinion did not specifically discuss every individual piece of evidence, she made clear that she had considered all of the evidence of record and that is all that is required.

Green’s petition for review of the BIA’s decision is denied.

For petitioner — Elissa C. Steglich and Amelia Wilson, American Friends Service Committee, Immigrant Rights Program. For respondent — Jason Wisecup, United States Department of Justice, Office of Immigration Litigation, Civil Division.