Nevel Heslop v. Attorney General United States

• Court: Court of Appeals for the Third Circuit
• Decided: November 30, 2022
• Docket: 22-1104
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________

No. 22-1104 ____________

NEVEL LAREY HESLOP, Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA

____________

On Petition for Review of an Order of the Board of Immigration Appeals (A038-582-748) Appellate Immigration Judge: Earle B. Wilson ____________

Submitted Under Third Circuit L.A.R. 34.1(a) (November 17, 2022)

Before: HARDIMAN, PORTER, and FISHER, Circuit Judges.

(Filed: November 30, 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.

Nevel Larey Heslop petitions for review of the decision of the Board of

Immigration Appeals denying his motion to reopen removal proceedings. We will deny

the petition.

I

Heslop is a native and citizen of Jamaica who entered the United States as a lawful

permanent resident in 1984. In 1991, he was convicted in New Jersey of murdering his

wife after he stabbed her in a barber shop. The next year Heslop was placed in removal

proceedings because his conviction was an aggravated felony. An immigration judge

issued an order of deportation in 1996 after denying Heslop a waiver of inadmissibility

under former INA § 212(c).

In 2011 and 2013, while Heslop was still incarcerated in the United States, his

family stated they had received threats against his life made by the family of his late wife

and an unknown person. In 2013, Heslop petitioned for review of his order of removal

with this Court, which we dismissed for lack of jurisdiction. We notified Heslop that his

claims relating to changed circumstances in Jamaica had to be presented to the agency

first. In 2021, Heslop petitioned to reopen his removal proceedings under the regulations

implementing the Convention Against Torture. The BIA denied the petition, holding it

was untimely and that no exception applied. Heslop filed this petition for review.

2 II1

Heslop’s petition to reopen was not filed within 90 days of the agency’s final

administrative order as required by regulation. See 8 C.F.R. § 1003.2(c)(2). To avoid that

time bar, Heslop claims circumstances in Jamaica have changed since his deportation

order was entered in 1996. See Bamaca-Cifuentes v. Att’y Gen., 870 F.3d 108, 110–11

(3d Cir. 2017).

A

Heslop cites death threats against him, and his fear that the family and former

partner of his late wife, whom he alleges have ties to the Jamaican government, will try to

kill him. Though its opinion is not a model of clarity, the BIA assumed that these

circumstances suffice to establish changed country conditions and proceeded to evaluate

Heslop’s prima facie eligibility for CAT protection. App. 13–14.

Heslop claims the BIA erred when it applied the incorrect standard for establishing

prima facie eligibility for relief. He is correct. Motions to reopen must show a

“reasonable likelihood” that the movant can establish entitlement to relief under CAT in a

reopened proceeding. Sevoian v. Ashcroft, 290 F.3d 166, 175 (3d Cir. 2002) (citation

omitted). This standard is less demanding than the burden at the merits phase, where the

applicant must show it is “more likely than not” he will be tortured if removed to the

proposed country. 8 C.F.R. § 208.16(c)(2). Here, the BIA began its analysis by citing

1 We have jurisdiction to consider Heslop’s petition under 8 U.S.C. § 1252(a)(1). Venue is proper because the proceedings were conducted in Newark, New Jersey. 8 U.S.C. § 1252(b)(2); A.R. 872. 3 cases that use the correct reasonable-likelihood standard. App. 13. But it later referenced

the more demanding standard: “more likely than not.” App. 13–14.

When the BIA applies the wrong standard of review, we retain the discretion to

decline remand and to determine as a matter of law whether the submitted evidence

establishes a prima facie case. See Guo v. Ashcroft, 386 F.3d 556, 564 (3d Cir. 2004), as

amended (Dec. 3, 2004); Tilija v. Att’y Gen., 930 F.3d 165, 174 (3d Cir. 2019). We

conclude that Heslop has no prima facie case for relief because he failed to present

sufficient evidence of likely torture in Jamaica as necessary to show a reasonable

likelihood of entitlement to CAT relief. Heslop failed to submit evidence establishing that

those threatening his life have current ties to any government official, let alone a tie

sufficient to convince the Jamaican government to consent or acquiesce in any feared

torture. Darby v. Att’y Gen., 1 F.4th 151, 163 (3d Cir. 2021). The BIA also reasonably

relied on the evidence of the State Department’s 2020 Country Report on Human Rights

Practices for Jamaica that discussed the success of Jamaica’s Independent Commission of

Investigations, which investigates and assists in the prosecution of any abuses by state

agents. App. 14; A.R. 632−33. Therefore, Heslop failed to establish a reasonable

likelihood that he will be tortured upon removal to Jamaica.

B

Heslop also cites general threats against deportees in Jamaica that he says make

him vulnerable to vigilante justice. The BIA found that this claim failed to clear the

procedural hurdle because Heslop did not submit material evidence of changed country

conditions in Jamaica. App. 12–13. None of the record materials Heslop identified on 4 appeal describe conditions in Jamaica in 1996 sufficient to establish a material change.

See Khan v. Att’y Gen., 691 F.3d 488, 496–97 (3d Cir. 2012). They make passing

reference to changes made by the Illegal Immigration Reform and Immigration

Responsibility Act in 1996. But they offer no description of the conditions in Jamaica at

that time. The BIA concluded that Heslop failed to establish what conditions were like in

Jamaica in 1996 as a baseline point of comparison. App. 12–13. Because that conclusion

was sound, the BIA did not abuse its discretion when it rejected Heslop’s claim of

general threats because he did not introduce material evidence of changed country

conditions. Darby, 1 F.4th at 160.

***

For these reasons, we will deny Heslop’s petition for review.