Duran-Quintanilla v. Sessions

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT September 22, 2017 _________________________________ Elisabeth A. Shumaker Clerk of Court ROLANDO DURAN-QUINTANILLA, Petitioner, v. No. 17-9513 (Petition for Review) JEFFERSON B. SESSIONS, III, United States Attorney General, Respondent. _________________________________ ORDER AND JUDGMENT* _________________________________ Before HARTZ, McKAY, and MATHESON, Circuit Judges. _________________________________ Rolando Duran-Quintanilla petitions for review from a decision by the Board of Immigration Appeals (BIA) denying his motion to reopen. Exercising jurisdiction pursuant to 8 U.S.C. § 1252, we deny the petition for review. I. Petitioner is a native and citizen of El Salvador. He has entered the United States without authorization three times. After his second unlawful entry, he was * After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. ordered removed. After his third unlawful entry in October 2015, the Department of Homeland Security (DHS) issued him a notice of its intent to reinstate his prior removal order. Petitioner then expressed a fear of torture if he was returned to El Salvador. An asylum officer concluded that petitioner did have a reasonable fear of torture and referred the matter to an immigration judge (IJ) in accordance with 8 C.F.R. § 1208.31(e).1 Under § 1208.31(e), the referral to the IJ was for “withholding of removal only.” Petitioner applied for withholding of removal under the Convention Against Torture (CAT), and he had a hearing on his application before an IJ in June 2016. The IJ ultimately denied relief, concluding that petitioner had failed to establish that it was more likely than not that Salvadoran officials would instigate, consent to, or acquiesce to his torture.2 The BIA affirmed the IJ’s decision in November 2016. Petitioner did not seek review of that decision in this court. 1 If an alien has his removal order reinstated and, during the reinstatement process, expresses a fear of returning to the country of removal, an asylum officer interviews the alien to make an initial reasonable fear determination. See 8 C.F.R. § 1208.31(a)-(c). If the asylum officer determines that the alien does have a reasonable fear of persecution or torture, the officer “issue[s] a Form I-863, Notice of Referral to the [IJ], for full consideration of the request for withholding of removal only.” Id. § 1208.31(e). 2 To prove eligibility for withholding of removal under the CAT, the applicant must “establish that it is more likely than not that he or she would be tortured if removed to the proposed country of removal.” 8 C.F.R. § 1208.16(c)(2). The definition of “torture” ...

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