16-2655
Rivas-Aponte v. Sessions
                                                                                                BIA
                                                                                           Straus, IJ
                                                                                       A018 630 410
                           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.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
25th day of June, two thousand eighteen.

Present:
            PIERRE N. LEVAL,
            GUIDO CALABRESI,
            DEBRA ANN LIVINGSTON,
                   Circuit Judges.
_____________________________________

SANTIAGO DE JESUS RIVAS-APONTE,
             Petitioner,

                  v.                                                        16-2655-ag

JEFFERSON B. SESSIONS III, UNITED STATES
ATTORNEY GENERAL,
              Respondent.
_____________________________________

For Petitioner:                           Kai W. De Graaf, New York, NY.

For Respondent:                           Paul Fiorino, Senior Litigation Counsel, Office of
                                          Immigration Litigation (Chad A. Readler, Acting
                                          Assistant Attorney General, Douglas E. Ginsburg,
                                          Assistant Director, on the brief), United States
                                          Department of Justice, Washington, DC.
       Petition for review of a June 28, 2016 Board of Immigration Appeals (“BIA”) decision

affirming an April 30, 2015 decision of an Immigration Judge (“IJ”) denying Rivas-Aponte’s

applications for asylum, withholding of removal, and Convention Against Torture (“CAT”) relief

and ordering his removal.

       UPON DUE CONSIDERATION of this petition for review of a BIA decision, it is hereby

ORDERED, ADJUDGED, AND DECREED that the petition for review is DENIED.

       Petitioner Santiago De Jesus Rivas-Aponte, a native and citizen of the Dominican

Republic, seeks review of a June 28, 2016 decision of the BIA affirming an April 30, 2015,

decision of an IJ denying Rivas-Aponte’s applications for asylum, withholding of removal, and

CAT relief and ordering his removal. In re Santiago De Jesus Rivas Aponte, No. A 018 630 410

(B.I.A. June 28, 2016), aff’g No. A 018 630 410 (Immig. Ct. Hartford Apr. 30, 2015). The

Government moves to dismiss the petition. We assume the parties’ familiarity with the underlying

facts and procedural history in this case.

       We have reviewed the IJ’s decision as modified and supplemented by the BIA. See Wala

v. Mukasey, 511 F.3d 102, 105 (2d Cir. 2007); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d
520, 522 (2d Cir. 2005). Because Rivas-Aponte was ordered removed for an aggravated felony,

our review is limited to colorable constitutional claims and questions of law. See 8 U.S.C.

§ 1252(a)(2)(C), (D); Ortiz-Franco v. Holder, 782 F.3d 81, 91 (2d Cir. 2015). Rivas-Aponte argues

that the IJ was required, under the Fifth Amendment’s Due Process Clause, to assess whether

removal was a disproportionate penalty for his criminal conviction. But this argument is foreclosed

by Marin-Marin v. Sessions, 852 F.3d 192, 194–95 (2d Cir. 2017) (per curiam), which held that

removal is not subject to due process proportionality review. See id. at 194 (“[I]n general, when

                                                2
removal is predicated on a criminal act, ‘the alien is not being punished for that act (criminal

charges may be available for that separate purpose) but is merely being held to the terms under

which he was admitted.’” (quoting Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471,

491 (1999))). Because the sole argument that Rivas-Aponte raises here is foreclosed by our

precedent, we deny the petition for review.

       Nonetheless, we decline to dismiss this case for lack of jurisdiction and so also DENY the

government’s motion to dismiss. Although “we lack jurisdiction to review any legal argument that

is so insubstantial and frivolous as to be inadequate to invoke federal-question jurisdiction,”

Barco-Sandoval v. Gonzales, 516 F.3d 35, 40 (2d Cir. 2008), Rivas-Aponte’s argument is not so

insubstantial as to meet this standard. See Avendano-Espejo v. Dep’t of Homeland Sec., 448 F.3d
503, 505–06 (2d Cir. 2006) (explaining that we lack jurisdiction when petitioners “dress up”

challenges to “decision[s] firmly committed by statute to the discretion of the Attorney General

. . . with the language of due process” (internal citations omitted); see also Steel Co. v. Citizens for

a Better Env’t, 523 U.S. 83, 89 (1998) (“Dismissal for lack of subject-matter jurisdiction because

of the inadequacy of the federal claim is proper only when the claim is ‘so insubstantial,

implausible, foreclosed by prior decisions of [the Supreme] Court, or otherwise completely devoid

of merit as not to involve a federal controversy.” (quoting Oneida Indian Nation of N.Y. v. Cty. of

Oneida, 414 U.S. 661, 666 (1974) (emphasis added)).

       For the foregoing reasons, the petition for review is DENIED, and the motion to dismiss

the petition is DENIED.

                                               FOR THE COURT:
                                               Catherine O’Hagan Wolfe,
                                               Clerk of Court

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