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Keywords

tortjurisdictionappealburden of prooffelony
tortjurisdictionburden of prooffelony

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Lemus-Galvan v. Mukasey

Facts

Lemus-Galvan is a native and citizen of Mexico who has been a legal permanent resident of the United States since 1982. He was convicted of attempted second degree murder and ordered deported in 1996. After the BIA dismissed his appeal, he moved to reopen proceedings to apply for deferral of removal under CAT, alleging a likelihood of torture by a drug cartel if returned to Mexico. The IJ denied his request for deferral of removal, finding that he could safely relocate within Mexico.

Lemus-Galvan is a native and citizen of Mexico who has been a legal permanent resident of the United States since 1982. He was convicted of attempted second degree murder and ordered deported in 1996.

Issue

Whether the court has jurisdiction to review the BIA's denial of deferral of removal under the Convention Against Torture (CAT) and whether Lemus-Galvan established the likelihood of torture upon return to Mexico.

Whether the court has jurisdiction to review the BIA's denial of deferral of removal under the Convention Against Torture (CAT) and whether Lemus-Galvan established the likelihood of torture upon return to Mexico.

Rule

The jurisdiction-stripping provision of 8 U.S.C. 1252(a)(2)(C) does not deprive the court of jurisdiction over denials of deferral of removal under the CAT, which are decisions on the merits. An IJ must grant deferral of removal if the alien can establish the likelihood of torture upon return.

The jurisdiction-stripping provision of 8 U.S.C. 1252(a)(2)(C) does not deprive the court of jurisdiction over denials of deferral of removal under the CAT, which are decisions on the merits.

Analysis

The court determined that it had jurisdiction over Lemus-Galvan's petition because the IJ denied his request for deferral of removal on the merits, not solely based on his aggravated felony conviction. The IJ found that Lemus-Galvan failed to demonstrate that internal relocation within Mexico was impossible, which is a requirement for granting deferral of removal under the CAT. The court concluded that substantial evidence supported the IJ's decision.

The court determined that it had jurisdiction over Lemus-Galvan's petition because the IJ denied his request for deferral of removal on the merits, not solely based on his aggravated felony conviction.

Conclusion

The appellate court denied the petition to review the BIA's decision, affirming the IJ's denial of deferral of removal under the CAT.

The appellate court denied the petition to review the BIA's decision, affirming the IJ's denial of deferral of removal under the CAT.

Who won?

The government prevailed in the case because the court found that Lemus-Galvan did not meet the burden of proof required to establish a likelihood of torture upon return to Mexico.

The government prevailed in the case because the court found that Lemus-Galvan did not meet the burden of proof required to establish a likelihood of torture upon return to Mexico.

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