Filed: Jan. 12, 2016
Latest Update: Mar. 02, 2020
Summary: 14-3705 Lomtadze v. Lynch BIA Sagerman, IJ A057 326 857 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
Summary: 14-3705 Lomtadze v. Lynch BIA Sagerman, IJ A057 326 857 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE ..
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14-3705
Lomtadze v. Lynch
BIA
Sagerman, IJ
A057 326 857
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE
(WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 12th day of January, two thousand sixteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 DEBRA ANN LIVINGSTON,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _____________________________________
12
13 GIORGI LOMTADZE,
14 Petitioner,
15
16 v. 14-3705
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Alexander J. Segal, New York, N.Y.
24
25 FOR RESPONDENT: Benjamin C. Mizer, Acting Assistant
26 Attorney General; Ernesto H. Molina,
27 Jr., Assistant Director; Bernard A.
28 Joseph, Trial Attorney, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review is
4 DISMISSED in part and DENIED in part.
5 Petitioner Giorgi Lomtadze, a native of the former Soviet
6 Union and a citizen of Georgia, seeks review of a September 18,
7 2014, decision of the BIA affirming an April 9, 2014, decision
8 of an Immigration Judge (“IJ”) denying Lomtadze’s application
9 for withholding of removal and relief under the Convention
10 Against Torture (“CAT”). In re Giorgi Lomtadze, No. A057 326
11 857 (B.I.A. Sept. 18, 2014), aff’g No. A057 326 857 (Immig. Ct.
12 Fishkill Apr. 9, 2014). We assume the parties’ familiarity
13 with the underlying facts and procedural history in this case.
14 We have reviewed both the IJ’s and the BIA’s opinions “for
15 the sake of completeness.” Zaman v. Mukasey, 514 F.3d 233, 237
16 (2d Cir. 2008) (quoting Wangchuck v. Dep’t of Homeland Sec.,
17
448 F.3d 524, 528 (2d Cir. 2006)). The applicable standards
18 of review are well established. See 8 U.S.C. § 1252(b)(4)(B);
19 Yanqin Weng v. Holder,
562 F.3d 510, 513 (2d Cir. 2009).
20 Our review is limited to constitutional claims and
21 questions of law because Lomtadze is removable based on his
2
1 conviction of an aggravated felony. 8 U.S.C. § 1252(a)(2)(C),
2 (D); Ortiz-Franco v. Holder, 782 F.3d 81, 86 (2d Cir. 2015)
3 (holding that “criminal bar” to our jurisdiction extends to CAT
4 deferral).
5 With respect to the agency’s denial of deferral of removal
6 under the CAT, Lomtadze raises no constitutional claim or
7 question of law. He challenges only the agency’s finding that
8 he did not establish a likelihood of being tortured in Georgia;
9 however, the likelihood of a future occurrence is a finding of
10 fact. Hui Lin Huang v. Holder,
677 F.3d 130, 134 (2d Cir. 2012).
11 Consequently, we lack jurisdiction to consider this claim.
12 With respect to withholding of removal, Lomtadze advances
13 two arguments: that the agency failed to consider the sentence
14 imposed, and that the agency credited the Pre-Sentence Report
15 over his testimony. We lack jurisdiction to consider the
16 latter, as it is a challenge to the agency’s factual
17 determinations and weighing of evidence. 8 U.S.C.
18 § 1252(a)(2)(C), (D); Argueta v. Holder,
617 F.3d 109, 112-13
19 (2d Cir. 2010).
20 Regarding the former, whether the agency has failed to
21 consider the relevant factors is a question of law. Cf.
3
1 Argueta, 617 F.3d at 113 (“Argueta’s contention that the IJ
2 weighed factors that the IJ was prohibited from considering is
3 quite distinct from the unreviewable argument that the IJ
4 balanced improperly those factors that the IJ could
5 consider.”). However, a review of the record indicates that
6 the agency adequately considered the sentence imposed,
7 particularly in light of agency precedent that “the sentence
8 imposed is not a dominant factor in determining whether a
9 conviction is for a particularly serious crime.” In re N-A-M-,
10 24 I. & N. Dec. 336, 343 (B.I.A. 2007).
11 For the foregoing reasons, the petition for review is
12 DISMISSED in part and DENIED in part.
13 FOR THE COURT:
14 Catherine O=Hagan Wolfe, Clerk
4
