Leroy Stuart v. Attorney General United States

• Court: Court of Appeals for the Third Circuit
• Decided: October 20, 2022
• Docket: 21-2865
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________

No. 21-2865 ____________

LEROY ANGLOSON STUART, Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA ____________

On Petition for Review of a Decision of the Board of Immigration Appeals (A036-810-752) Immigration Judge: Jason L. Pope ____________

Submitted Under Third Circuit LAR 34.1(a) (October 7, 2022)

Before: HARDIMAN, SHWARTZ, and NYGAARD, Circuit Judges.

(Filed: October 20, 2022)

____________

OPINION ____________

 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. HARDIMAN, Circuit Judge.

Leroy Stuart petitions for review of an order of the Board of Immigration Appeals

finding him ineligible for waiver of removal under former § 212(c) of the Immigration

and Nationality Act and denying his application for deferral of removal under the

Convention Against Torture. We will deny the petition.

I

A native and citizen of Barbados, Stuart entered the United States as a lawful

permanent resident in 1983. About ten years later, he was convicted of multiple armed

bank robberies and was sentenced to more than forty-six years’ imprisonment. In

December 2020, after serving a federal sentence reduced by 18 U.S.C. § 3582(c)(1)(A),

Stuart was transferred to Immigration and Customs Enforcement custody. The

Department of Homeland Security charged Stuart as removable based on his federal

convictions for bank robbery with a dangerous weapon in violation of 18 U.S.C.

§ 2113(d), and carrying and use of a firearm during a bank robbery in violation of 18

U.S.C. § 924(c)(1). The DHS also designated Stuart’s § 2113(d) convictions as crimes

involving moral turpitude and aggravated felonies of theft and violence.

Stuart conceded removability based on his firearms conviction, but he sought a

waiver of inadmissibility under former § 212(c) of the INA. After a hearing, the

Immigration Judge found Stuart removable because he had been convicted of an

aggravated felony theft offense, an aggravated felony crime of violence, and two crimes

involving moral turpitude. The IJ also determined Stuart was ineligible for a § 212(c)

waiver because of his aggravated felonies.

2 After the hearing, Stuart applied for CAT relief, citing phone calls his family in

Barbados received that threatened Stuart’s life. Stuart asserted fear of being tortured by

his former criminal associates “as revenge for things I did to them” and for engaging in

homosexual acts. A.R. 693. Following another hearing, the IJ denied Stuart CAT relief,

and the BIA affirmed. Stuart filed this petition before he was removed to Barbados on

June 9, 2022.

II1

Stuart first argues the BIA erred when it found him ineligible for waiver of

removal under § 212(c) of the INA. This argument fails for several reasons. As Stuart

acknowledges at 43–44 of his opening brief, our decision in United States v. Johnson,

899 F.3d 191, 204 (3d Cir. 2018), forecloses his argument that his convictions under 18

U.S.C. § 2113(d) do not qualify as aggravated violent felonies. Even were that not the

case, those convictions constitute aggravated theft felonies that also make him ineligible

for § 212(c) relief. Stuart makes no argument on that point and he erroneously claims the

BIA failed to rule on the issue. In fact, the BIA expressly affirmed the IJ’s decision that

Stuart committed disqualifying theft crimes. That ruling—combined with Stuart’s failure

to address the issue—is an independent reason to reject his § 212(c) argument. Barna v.

Bd. of Sch. Dirs., 877 F.3d 136, 147 (3d Cir. 2017) (explaining that we do not reach

1 We have jurisdiction under 8 U.S.C. § 1252(a)(1). This appeal was timely filed within 30 days of the final order of removal. 8 U.S.C. § 1252(b)(1). Venue is also proper because Stuart’s removal proceedings were completed in Elizabeth, New Jersey. 8 U.S.C. § 1252(b)(2).

3 forfeited issues absent exceptional circumstances).

III

Stuart next challenges the BIA’s denial of CAT relief. He claims the IJ and BIA

failed to make predictive factual findings, but the record shows otherwise. The IJ

predicted—and the BIA affirmed—that Stuart would face some discrimination upon his

return to Barbados. Although Stuart contends that neither the IJ nor the BIA reviewed

what kind of discrimination he is likely to face, the IJ acknowledged Stuart’s concerns

relating to LGBT discrimination in Barbados. Two pages of the IJ decision recount—by

general reference and specific citations—the country conditions evidence submitted by

both parties. The BIA affirmed the IJ’s consideration of these country conditions and

supporting documentation.

Stuart accuses the IJ of ignoring evidence favorable to him. But the IJ

acknowledged that LGBT persons are more vulnerable to crime and that Barbados

criminalizes homosexual conduct. The IJ also balanced that law against generally

improving conditions for LGBT persons, including that the law criminalizing

homosexual conduct is not enforced. The IJ further weighed evidence of the existence of

a pride parade and statements from the former attorney general making clear that LGBT

people in Barbados should be protected. The BIA affirmed these findings of fact. In sum,

the agency made sufficient predictive factual findings about the level of discrimination

Stuart will face and those findings are supported by substantial evidence. See Nasrallah

v. Barr, 140 S. Ct. 1683, 1692 (2020).

As for the threatening phone calls reported by Stuart’s family, the agency found

4 the threats “too speculative” to justify relief. A.R. 4, 62. Stuart assumed the callers were

his former criminal associates, but he could not confirm the identity or motives of the

callers, or whether his former criminal associates were even living in Barbados. A letter

provided by Stuart’s brother also disclaimed knowledge of the callers’ identities and

speculated the unknown individuals may want to harm Stuart because of various grudges

relating to Stuart’s criminal past, including his association with a Rastafarian drug gang.

The IJ’s factual findings—and the conclusion that the threats were too speculative—were

supported by substantial evidence. A.R. 62–65; see also Denis v. Att’y Gen., 633 F.3d

201, 218 (3d Cir. 2011) (finding that unsupported speculation cannot demonstrate

likelihood of torture).

Stuart also makes several arguments that the BIA decision was legally defective.

None is persuasive. Stuart argues that the BIA failed to perform de novo review. But the

BIA did conduct de novo review, citing to Matter of R-A-F-, 27 I. & N. Dec. 778, 779

(A.G. 2020). The BIA did not have to explain its application of the standard in detail. See

Matter of Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994). Nor was the BIA required to

analyze government acquiescence, as here there was no finding of a likelihood of torture.

See Myrie v. Att’y Gen., 855 F.3d 509, 515–16 (3d Cir. 2017).

Finally, Stuart contends the agency ignored his fears of psychological torture, and

failed to review the evidence cumulatively. Both arguments fail because the agency

reviewed the record, grasped Stuart’s claims, and rendered findings and a legal

conclusion supported by the record.

5 * * *

For the reasons stated, we will deny Stuart’s petition for review.