David Sesay v. Eric Holder, Jr., No. 13-1299 (4th Cir. 2013)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-1299 DAVID SESAY, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Submitted: August 20, 2013 Before KING and Circuit Judge. DAVIS, Circuit Decided: Judges, and September 5, 2013 HAMILTON, Senior Petition dismissed by unpublished per curiam opinion. Randall L. Johnson, JOHNSON & ASSOCIATES, P.C., Arlington, Virginia, for Petitioner. Stuart F. Delery, Acting Assistant Attorney General, William C. Peachey, Assistant Director, Jonathan Robbins, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: David Sesay, a native and citizen of Sierra Leone, petitions for review of the Board of Immigration Appeals ( Board ) order denying his motion for remand and dismissing his appeal of the immigration judge s ( IJ ) order denying Sesay s application for protection under the Convention Against Torture ( CAT ). to The Attorney General argues that we lack jurisdiction review the convicted of claims an advanced aggravated by Sesay felony and because does he not has been assert any reviewable constitutional claim or question of law. Under generally removal of including review lacks an an U.S.C. § 1252(a)(2)(C) jurisdiction alien to convicted aggravated factual stripping 8 [in of felony. determinations provision review the certain We that (2006), § 1252(a)(2)(C)], final court order enumerated retain trigger this crimes, jurisdiction the of to jurisdiction- such as whether [Sesay] [i]s an alien and whether []he has been convicted of an aggravated felony. Ramtulla v. Ashcroft, 301 F.3d 202, 203 (4th 2002). But we review Cir. confirmed, may once these only two determinations constitutional claims are or questions of law raised in an appropriate petition for review. 8 U.S.C. § 1252(a)(2)(D) (2006); see Turkson v. Holder, 667 F.3d 523, 527 (4th Cir. 2012). 2 Sesay concedes that he is an alien and that he has been convicted of an aggravated felony. Having reviewed the record, we conclude that we lack jurisdiction to review Sesay s petition because he has failed to assert a question of law or a constitutional claim that falls within the § 1252(a)(2)(D) exception. As we have explained, the jurisdiction-stripping provisions of § 1252(a)(2)(C) bar us from reviewing, in cases where an alien has been convicted of an aggravated felony, any of the Board s factual determinations. F.3d 243, 248 (4th Cir. 2008). determination evidence that we standard. would Id. at Saintha v. Mukasey, 516 A factual determination is any review 249. under And the because substantial the Board s conclusion that Sesay would not likely face torture upon his return to Sierra Leone is a decision that we would review only to determine if it was supported by substantial evidence, the Board s CAT determination here factual, not legal, in nature. is properly Id. at 250. characterized as We therefore lack authority to review it. Section 1252(a)(2)(C) s prohibition against reviewing final orders of removal when the alien is removable for having been convicted of an aggravated felony extends to denials of motions to reopen and motions to remand. Holder, 675 F.3d 380, 389-90 (4th 3 Cir. See Bracamontes v. 2012); Esquivel v. Mukasey, 543 F.3d 919, 923 (7th Cir. 2008); see also Larngar v. Holder, 562 F.3d 71, 75 (1st Cir. 2009); Hanan v. Mukasey, 519 F.3d 760, 763 (8th Cir. 2008); Cruz v. Attorney Gen., 452 F.3d 240, 246 (3d Cir. 2006); Obioha v. Gonzales, 431 F.3d 400, 40608 (4th Cir. 2005); Durant v. INS, 393 F.3d 113, 115-16 (2d Cir. 2004). Because Sesay s assertions touching the Board s denial of his motion to remand do not raise a constitutional claim or legal question, we have no authority to review them, either. Accordingly, we dismiss the petition for review. dispense with contentions are oral argument adequately because presented in the the facts We and legal materials before this court and argument would not aid the decisional process. PETITION DISMISSED 4
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