Ortiz-Franco requested protection under the Convention Against Torture (CAT) on the ground that members of La Mara Salvatrucha street gang (“MS‐13”) would torture and kill him because of information he provided to federal prosecutors. The Immigration Judge denied his application, and the Board of Immigration Appeals (Board) affirmed. On appeal to the Second Circuit, Ortiz-Franco argued that the Board erred in concluding that he did not show the requisite likelihood of torture or that any torture by gang members would occur with the acquiescence of Salvadoran government.
Unfortunately, because Ortiz-Franco had been found removable based on criminal grounds, the Second Circuit's jurisdiction was limited to review of constitutional claims and questions of law. The court noted that its past case law on this jurisdictional issue was unclear, but firmly concluded (for the first time) that its jurisdiction was circumscribed to constitutional issues and questions of law because of Ortiz-Franco's crime-based removability. The court then concluded that Ortiz-Franco's appeal was merely a challenge to the Immigration Judge's fact-finding, and did not raise a constitutional claim or a question of law.
The full text of Ortiz-Franco v. Holder can be found here: http://www.ca2.uscourts.gov/decisions/isysquery/8520df4d-9fbc-42ec-8620-41b090e80b0a/2/doc/13-3610_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/8520df4d-9fbc-42ec-8620-41b090e80b0a/2/hilite/