NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________
Nos. 21-2667 & 22-1765 ____________
HIEU VAN TRAN,
Petitioner v.
ATTORNEY GENERAL UNITED STATES OF AMERICA ____________
On Petitions for Review of Orders of the Board of Immigration Appeals (A046-574-876) Immigration Judge: Alice Song Hartye ____________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) January 19, 2023 ____________
Before: AMBRO, PORTER, and FREEMAN, Circuit Judges.
(Opinion filed February 3, 2023) ____________
OPINION* ____________
FREEMAN, Circuit Judge.
Hieu Van Tran petitions for review of two decisions: the Immigration Judge’s
order denying relief under the Convention Against Torture and the Board of Immigration
* This disposition is not an opinion of the full Court and pursuant to 3d Cir. I.O.P. 5.7 does not constitute binding precedent. Appeals’ order denying his motion to reopen his removal proceedings. For the reasons
stated, we will deny the petition in part and dismiss in part for lack of jurisdiction.
I.
Tran was born in Vietnam and admitted to the United States as a lawful permanent
resident when he was seven or eight years old. Approximately twenty years later, he was
convicted of drug distribution, in violation of 21 U.S.C. §§ 841(a) & (b)(1)(C), which led
him to be placed in removal proceedings. Proceeding pro se, Tran applied for asylum,
withholding of removal, and deferral of removal under the Convention Against Torture
(“CAT”). He asserted that he feared returning to Vietnam based on his race, mixed
ethnic background, religion, and political beliefs. Tran is the child of an Amerasian
parent with African-American ancestry, and he is a Christian.
At the merits hearing, the Immigration Judge (“IJ”) questioned Tran extensively
about the bases for his application for protection under CAT, including his mixed ethnic
background. Tran recounted three childhood incidents where he had been harmed in
Vietnam. First, he described an incident where he picked fruit from a villager’s tree
without permission; the villager retaliated by tying him to a tree, causing Tran to suffer
from ant bites. Upon probing by the IJ, Tran testified he believed he was targeted
because of his race and mixed ethnic background but could not recall the villager’s
saying anything to him during the incident. Second, Tran described an incident where he
and other children were playing on a neighbor’s flooded rice paddy without permission
and the neighbor retaliated by grabbing him and dunking his head repeatedly in water.
He testified he believed he was harmed because he was “messing up” the rice paddy.
2 Administrative Record (“A.R.”) 813.1 Upon the IJ’s probing, Tran also stated he
believed he was targeted because of his mixed ethnic background, though he admitted his
belief was rooted in speculation. Third, during a short visit to Vietnam after relocating to
the United States, a bystander told Tran he did not belong because he came from
America, threw a rock at him, and started a fight that onlookers quickly broke up. Tran
testified that he did not contact government authorities about any of these incidents and
he did not believe the government had ever harmed him.
In response to the IJ’s questions about his religion and political views, Tran
testified that he was not politically active but that he could be imprisoned or killed in
Vietnam because of his belief in freedom or because of his practice of Christianity. The
IJ twice provided him the opportunity to share any additional information about his fear
of returning to Vietnam.
The IJ denied relief. Because of his prior drug distribution offense, Tran was
ineligible for asylum under 8 U.S.C. § 1158(b)(2) and withholding of removal under
8 U.S.C. § 1231(b)(3)(B). The IJ also denied the request for protection under CAT,
concluding that Tran failed to show that he would be subject to torture in Vietnam by or
with the acquiescence of the Vietnamese government.
Tran appealed to the Board of Immigration Appeals (“BIA”). He did not address
his CAT claim in his notice of appeal; his sole contention pertained to his prior drug
1 There are numerous versions of the Administrative Record on the two dockets in this case. Citations herein are to the Administrative Record at Docket Entry 6 in No. 22- 1765. 3 conviction. He argued that the sentencing court and his defense counsel failed to advise
him of the immigration consequences of pleading guilty, and he stated his intent to
collaterally challenge his conviction.2 The BIA dismissed the appeal, noting that Tran’s
conviction remains final for immigration purposes until it is overturned. Because he had
not challenged the IJ’s decisions, the BIA concluded he had waived any such challenges.
He then timely filed a petition for review of the BIA’s decision in this Court.
While his petition for review was pending, Tran filed a motion to reopen his
removal proceedings with the BIA, arguing that his proceedings had been fundamentally
unfair because he was not competent to represent himself and the IJ had failed to develop
the record regarding his CAT claim. He submitted additional country conditions
evidence to support his CAT claim. We held his petition in abeyance for the BIA to
resolve his motion to reopen. On March 31, 2022, the BIA denied the motion as
procedurally improper because Tran had failed to present any material evidence that
could not have been presented in earlier proceedings and had failed to present any indicia
of incompetency. In the alternative, the BIA concluded Tran could not show he was
eligible for relief under CAT. Tran then filed another petition for review in this Court,
and we consolidated his two petitions.
II.
“We have jurisdiction under 8 U.S.C. § 1252(a)(1) to review a final order of the
BIA denying CAT relief.” Myrie v. Att’y Gen., 855 F.3d 509, 515 (3d Cir. 2017). The
2 He also filed a brief that the BIA rejected as untimely. The brief is not in the record before this Court. 4 scope of our review is limited to the BIA’s order, but if the BIA adopts the IJ’s decision,
we look to both decisions. Id. We review the BIA’s factual findings under the
substantial-evidence standard, meaning that we will uphold findings of fact unless a
reasonable adjudicator would be compelled to conclude to the contrary, Nasrallah v.
Barr, 140 S. Ct. 1683, 1692 (2020), and we review the BIA’s legal determinations de
novo, Serrano-Alberto v. Att’y Gen., 859 F.3d 208, 213 (3d Cir. 2017). “By contrast, we
review the denial of a motion to reopen for abuse of discretion and will reverse only if the
denial was ‘arbitrary, irrational, or contrary to law.’” Id. (quoting Abulashvili v. Att’y
Gen., 663 F.3d 197
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________
Nos. 21-2667 & 22-1765 ____________
HIEU VAN TRAN,
Petitioner v.
ATTORNEY GENERAL UNITED STATES OF AMERICA ____________
On Petitions for Review of Orders of the Board of Immigration Appeals (A046-574-876) Immigration Judge: Alice Song Hartye ____________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) January 19, 2023 ____________
Before: AMBRO, PORTER, and FREEMAN, Circuit Judges.
(Opinion filed February 3, 2023) ____________
OPINION* ____________
FREEMAN, Circuit Judge.
Hieu Van Tran petitions for review of two decisions: the Immigration Judge’s
order denying relief under the Convention Against Torture and the Board of Immigration
* This disposition is not an opinion of the full Court and pursuant to 3d Cir. I.O.P. 5.7 does not constitute binding precedent. Appeals’ order denying his motion to reopen his removal proceedings. For the reasons
stated, we will deny the petition in part and dismiss in part for lack of jurisdiction.
I.
Tran was born in Vietnam and admitted to the United States as a lawful permanent
resident when he was seven or eight years old. Approximately twenty years later, he was
convicted of drug distribution, in violation of 21 U.S.C. §§ 841(a) & (b)(1)(C), which led
him to be placed in removal proceedings. Proceeding pro se, Tran applied for asylum,
withholding of removal, and deferral of removal under the Convention Against Torture
(“CAT”). He asserted that he feared returning to Vietnam based on his race, mixed
ethnic background, religion, and political beliefs. Tran is the child of an Amerasian
parent with African-American ancestry, and he is a Christian.
At the merits hearing, the Immigration Judge (“IJ”) questioned Tran extensively
about the bases for his application for protection under CAT, including his mixed ethnic
background. Tran recounted three childhood incidents where he had been harmed in
Vietnam. First, he described an incident where he picked fruit from a villager’s tree
without permission; the villager retaliated by tying him to a tree, causing Tran to suffer
from ant bites. Upon probing by the IJ, Tran testified he believed he was targeted
because of his race and mixed ethnic background but could not recall the villager’s
saying anything to him during the incident. Second, Tran described an incident where he
and other children were playing on a neighbor’s flooded rice paddy without permission
and the neighbor retaliated by grabbing him and dunking his head repeatedly in water.
He testified he believed he was harmed because he was “messing up” the rice paddy.
2 Administrative Record (“A.R.”) 813.1 Upon the IJ’s probing, Tran also stated he
believed he was targeted because of his mixed ethnic background, though he admitted his
belief was rooted in speculation. Third, during a short visit to Vietnam after relocating to
the United States, a bystander told Tran he did not belong because he came from
America, threw a rock at him, and started a fight that onlookers quickly broke up. Tran
testified that he did not contact government authorities about any of these incidents and
he did not believe the government had ever harmed him.
In response to the IJ’s questions about his religion and political views, Tran
testified that he was not politically active but that he could be imprisoned or killed in
Vietnam because of his belief in freedom or because of his practice of Christianity. The
IJ twice provided him the opportunity to share any additional information about his fear
of returning to Vietnam.
The IJ denied relief. Because of his prior drug distribution offense, Tran was
ineligible for asylum under 8 U.S.C. § 1158(b)(2) and withholding of removal under
8 U.S.C. § 1231(b)(3)(B). The IJ also denied the request for protection under CAT,
concluding that Tran failed to show that he would be subject to torture in Vietnam by or
with the acquiescence of the Vietnamese government.
Tran appealed to the Board of Immigration Appeals (“BIA”). He did not address
his CAT claim in his notice of appeal; his sole contention pertained to his prior drug
1 There are numerous versions of the Administrative Record on the two dockets in this case. Citations herein are to the Administrative Record at Docket Entry 6 in No. 22- 1765. 3 conviction. He argued that the sentencing court and his defense counsel failed to advise
him of the immigration consequences of pleading guilty, and he stated his intent to
collaterally challenge his conviction.2 The BIA dismissed the appeal, noting that Tran’s
conviction remains final for immigration purposes until it is overturned. Because he had
not challenged the IJ’s decisions, the BIA concluded he had waived any such challenges.
He then timely filed a petition for review of the BIA’s decision in this Court.
While his petition for review was pending, Tran filed a motion to reopen his
removal proceedings with the BIA, arguing that his proceedings had been fundamentally
unfair because he was not competent to represent himself and the IJ had failed to develop
the record regarding his CAT claim. He submitted additional country conditions
evidence to support his CAT claim. We held his petition in abeyance for the BIA to
resolve his motion to reopen. On March 31, 2022, the BIA denied the motion as
procedurally improper because Tran had failed to present any material evidence that
could not have been presented in earlier proceedings and had failed to present any indicia
of incompetency. In the alternative, the BIA concluded Tran could not show he was
eligible for relief under CAT. Tran then filed another petition for review in this Court,
and we consolidated his two petitions.
II.
“We have jurisdiction under 8 U.S.C. § 1252(a)(1) to review a final order of the
BIA denying CAT relief.” Myrie v. Att’y Gen., 855 F.3d 509, 515 (3d Cir. 2017). The
2 He also filed a brief that the BIA rejected as untimely. The brief is not in the record before this Court. 4 scope of our review is limited to the BIA’s order, but if the BIA adopts the IJ’s decision,
we look to both decisions. Id. We review the BIA’s factual findings under the
substantial-evidence standard, meaning that we will uphold findings of fact unless a
reasonable adjudicator would be compelled to conclude to the contrary, Nasrallah v.
Barr, 140 S. Ct. 1683, 1692 (2020), and we review the BIA’s legal determinations de
novo, Serrano-Alberto v. Att’y Gen., 859 F.3d 208, 213 (3d Cir. 2017). “By contrast, we
review the denial of a motion to reopen for abuse of discretion and will reverse only if the
denial was ‘arbitrary, irrational, or contrary to law.’” Id. (quoting Abulashvili v. Att’y
Gen., 663 F.3d 197, 202 (3d Cir. 2011)).
Tran argues that he was denied due process because the IJ “failed to adequately
develop the evidentiary record” for his CAT claim. Petition (“Pet.”) at 10. But Tran did
not assert this due process claim in his appeal to the BIA. When a claim of procedural
error could have been addressed in the first instance by the BIA on appeal but was not,
we lack jurisdiction to review it. Bonhometre v. Gonzales, 414 F.3d 442, 448 (3d Cir.
2005). Accordingly, Tran’s due process claim is unexhausted and beyond this Court’s
review.
Even if we were to consider Tran’s due process claim on the merits, we would not
grant relief. Tran argues that the IJ denied him due process by “limiting the evidentiary
record” and failing to develop the record around the history of Amerasian persecution in
Vietnam. Pet. at 12. But to prevail on his due process claim, Tran must show two things:
(1) that he “was prevented from reasonably presenting his case” and (2) that “substantial
prejudice resulted” from the alleged violation. Serrano-Alberto, 859 F.3d at 223 (quoting
5 Fadiga v. Att’y Gen., 488 F.3d 142, 155 (3d Cir. 2007)). Tran’s argument fails at the first
step.3
The IJ thoroughly questioned Tran about his reasons for seeking CAT relief, the
nature and severity of harm he had previously suffered, and any government
involvement. The IJ also helped Tran connect his testimony to his fear of torture based
on his mixed ethnic background; advised Tran about the type of evidence he could submit
in support of his application; and reviewed country conditions evidence in rendering a
decision. The IJ’s lengthy interaction with Tran hardly resembles those cases where we
have held that an IJ violated due process. See, e.g., Serrano-Alberto, 859 F.3d at 212 (IJ
violated due process by belittling, interrupting, and restricting the petitioner’s testimony).
And Tran’s assertion that the IJ should have done more to address Amerasian issues fails
to explain how the IJ prevented him from reasonably presenting his case or how that
resulted in substantial prejudice.4
Tran also challenges the BIA’s order denying his motion to reopen. The BIA
denied that motion because it was not supported by evidence that “is material and was not
available and could not have been discovered or presented at the former hearing.”
8 C.F.R. § 1003.2(c)(1); see also I.N.S. v. Abudu, 485 U.S. 94, 104 (1988). The Board’s
3 Tran also claims that the IJ applied an incorrect legal standard for determining CAT relief. Pet. at 14. But the IJ correctly identified the elements of a CAT claim and cited the applicable law. A.R. 719–27 (citing Myrie, 855 F.3d 509). 4 Tran asks this Court to hold that IJs have an affirmative constitutional duty to develop the record. This Court has not expressly addressed whether due process creates such a duty, Serrano-Alberto, 859 F.3d at 224 n.8, and we need not resolve that question here. Assuming such a duty exists, the record shows that the IJ fulfilled that duty in addition to her statutory duty under 8 U.S.C. § 1229a(b)(1). 6 decision was not arbitrary, irrational, or contrary to law, and therefore was not an abuse
of discretion. See Serrano-Alberto, 859 F.3d at 213.
Tran argues that he should be excused from the requirement that he support his
motion to reopen with new, material evidence because he was incompetent and lacked
knowledge about the history of Amerasian persecution. But the BIA properly reviewed
the administrative record and did not find any indicia of incompetency. See Matter of M-
A-M-, 25 I. & N. Dec. 474, 484 (BIA 2011).
Even if Tran’s motion to reopen had been procedurally proper, we would deny
relief because Tran did not establish a prima facie case for relief under CAT. Gen Lin v.
Att’y Gen., 700 F.3d 683, 686 (3d Cir. 2012). Although Tran identified past harms that
may have been rooted in his mixed ethnic background, he has not established that he is
more likely than not to be tortured “by or at the instigation of or with the consent or
acquiescence of” a Vietnamese official. Sevoian v. Ashcroft, 290 F.3d 166, 175 (3d Cir.
2002) (quoting 8 C.F.R. § 208.18(a)(1)). Therefore, the BIA did not abuse its discretion
when it denied his motion to reopen.
III.
Because we lack jurisdiction to review Tran’s due process objection to the IJ’s
CAT decision, we will dismiss that portion of his petition. We otherwise will deny
Tran’s petition for review.