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[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit
____________________
No. 23-10924 Non-Argument Calendar ____________________
NICOLAS ELPIDIO MANBRU-ENCARNACION, Petitioner, versus U.S. ATTORNEY GENERAL,
Respondent.
Petition for Review of a Decision of the Board of Immigration Appeals Agency No. A030-850-491 ____________________ USCA11 Case: 23-10924 Document: 19-1 Date Filed: 01/10/2025 Page: 2 of 24
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Before GRANT, BRASHER, and ABUDU, Circuit Judges. PER CURIAM: Nicolas Elpidio Manbru-Encarnacion petitions for review of an order of the Board of Immigration Appeals (“BIA”) denying his motion to reopen his removal proceedings. He argues that he pre- sented the BIA with sufficient new evidence to warrant reopening the proceedings on his application for relief under the United Na- tions Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”), 8 C.F.R. § 1208.16(c). He also argues that he was prejudiced by the ineffec- tive assistance of his counsel. After careful review, we deny the petition for review. I. FACTUAL BACKGROUND & PROCEDURAL HISTORY Manbru-Encarnacion, a native and citizen of the Dominican Republic, was admitted to the United States as a lawful permanent resident on or about June 8, 1972. He was last admitted to the United States on November 22, 1992, in New York, New York. In 2018 and 2019, the Department of Homeland Security served him with documents alleging that he was removable on various grounds. After several continuances, Manbru-Encarnacion, repre- sented by counsel, conceded that he was removable as charged. He conceded that he had convictions for grand larceny, criminal pos- session of a weapon, obtaining a credit card through fraudulent means, conspiracy to commit robbery and robbery, and making a false statement in an application for a passport. USCA11 Case: 23-10924 Document: 19-1 Date Filed: 01/10/2025 Page: 3 of 24
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Manbru-Encarnacion applied for relief from removal under the CAT. His application stated that he had received death threats in the past from Cesar Perez, Santiago Luis Polanco (“Yayo”), Benji Herrera, and other members of “the Wild Cowboys” gang (“TWC”) because he had cooperated with the United States gov- ernment as a confidential informant. He argued that these individ- uals would kill him and his family if he were to return to the Do- minican Republic because there was a bounty on his head for his work as a confidential informant.1 Manbru-Encarnacion submitted evidence in support, includ- ing a letter from the Federal Bureau of Investigation (“FBI”) which stated that he had been a confidential informant but that it was not currently aware of any threats of injury to him if he were deported to the Dominican Republic. He also submitted various news arti- cles and documentary evidence about TWC and the leaders of the gang. Declarations by several individuals in the Dominican Repub- lic represented that Yayo had influence in the current government of the Dominican Republic and Perez worked at the airport and had government connections as well. Country conditions evi- dence showed that, while the government had acted to punish of- ficials who committed human rights abuses, there were reports of
1 Manbru-Encarnacion’s initial application also presented claims based on his
religion. However, he did not press his religion-based claim, either before the agency, in his motion to reopen, or before us. Thus, that claim is abandoned. See Alkotof v. U.S. Att’y Gen., 106 F.4th 1289, 1295 n.9 (11th Cir. 2024). USCA11 Case: 23-10924 Document: 19-1 Date Filed: 01/10/2025 Page: 4 of 24
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official impunity, corruption, and the torture, beating, and physical abuse of detainees and prisoners. An affidavit from Manbru-Encarnacion explained that, in the late 1980s, he became a confidential informant with the FBI’s New York Field Office. He had attended the same high school as indi- viduals within TWC. Yayo was the leader of the gang and Perez was one of the men who helped Yayo launder money. In the 1990s, Manbru-Encarnacion assisted the FBI’s investigation of a murder, served as a material witness, and was discovered to be such by members of TWC. He explained that, subsequently, a TWC mem- ber shot at him while he was driving. After he moved away from New York, Perez began calling his then-wife and threatening her. Perez told him that there was a price on his head and later he found out that, from another gang member, Perez had paid someone to stab him while he was in prison. After his release from prison, the threats continued, and Perez posted photos online of Manbru-En- carnacion with a noose around his neck. Manbru-Encarnacion submitted emails apparently from Pe- rez that reflected that he knew who Manbru-Encarnacion was and where he lived. The emails contained statements like “[y]our job is to steal from idiots and run and hide and my work is finding you to pay for what you stole from me,” and “[w]e are investigating your whereabouts and where you are, we are going to let you know who is Nicholas Manbru-Encarnacion. A scammer, thief, con artist, a scourge, and an antisocial.” USCA11 Case: 23-10924 Document: 19-1 Date Filed: 01/10/2025 Page: 5 of 24
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At a merits hearing in February 2020, Manbru-Encarnacion appeared but his retained counsel was not present. The attorney who did appear, an associate from the same firm, moved for a con- tinuance to allow Manbru-Encarnacion’s attorney to appear. The IJ denied the continuance, noting that the case had already been continued several times. Manbru-Encarnacion then testified to the facts in his appli- cation. Relevantly, he stated that he did not have any associations with any cartels in the Dominican Republic and had never worked for a cartel, but he had received threats from them, as well as from people connected with the government. The threats warned that he and his family would be killed or tortured if they went to the Dominican Republic. He had been receiving threats since the 1990s, but, in 2009, after he and his now-ex-wife started a Christian ministry, the threats became so frequent that they would not an- swer their home phone. Individuals then started calling his ex-wife on her cell phone and “making all kind of threats and things like that, saying that [he] was a rat, and that they were going to kill [him], that they were going to kill [his] family, . . . and that they were just waiting for [him] to go to the Dominican Republic.” He stated that “[t]hey have people working in the government with them.” He clarified that he had been receiving threats from TWC for being a confidential informant for the FBI. He stated that TWC knew he was an informant because of corrupt cops on their payroll. Manbru-Encarnacion explained that a member of TWC “took a shot at” him and blew the back window off his vehicle. He moved USCA11 Case: 23-10924 Document: 19-1 Date Filed: 01/10/2025 Page: 6 of 24
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away from New York and later learned that TWC had put a price on his head. Manbru-Encarnacion described how, when he lived in the Bronx, he had been kidnapped from his liquor store, and then was taken to the District Attorney’s office in the Bronx, where he en- countered cops that were associated with TWC. He then tried to relocate from New York to Florida, and then went to prison in 2005. He contended that people in the government knew he was in removal proceedings. He testified that, if returned to the Do- minican Republic, he would be kidnapped and killed because of his cooperation. While he was in detention, he was visited by a special agent from the FBI who said he was concerned about him going back to the Dominican Republic, and also by an agent from the State Department who shared these sentiments. He also argued that the record evidence showed that TWC was dangerous and had power within the Dominican Republic. He emphasized that he be- lieved that he would be killed if he returned to the Dominican Re- public. When asked whether his family had ever been threatened, he responded that he had “always protected [his] family” and shielded his past from them, but he believed they would be put in danger if he was returned to the Dominican Republic. While Manbru-Encarnacion was testifying and responding to questions from the IJ, retained counsel arrived and, after a short break, stated that she had been in contact with the FBI about Man- bru-Encarnacion’s informant work, and that she needed to make a formal request to the Attorney General. Manbru-Encarnacion’s USCA11 Case: 23-10924 Document: 19-1 Date Filed: 01/10/2025 Page: 7 of 24
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counsel explained that she was seeking information about the con- nection between Perez and Yayo, and whether they were linked to the assistance that Manbru-Encarnacion had provided to the FBI. She argued that both men were aware of Manbru-Encarnacion’s work as an informant, as shown by Perez’s threats, and that Yayo was safe in the Dominican Republic, which showed that the gov- ernment was protecting him. When asked about the lack of explicit threats in the emails from Perez, Manbru-Encarnacion’s counsel responded that she thought “a lot of it [was] implied.” When asked about the FBI letter that stated it was not currently aware of any threats of injury against Manbru-Encarnacion, she indicated that she was still looking for Manbru-Encarnacion’s FBI file. She also acknowledged that, though his identity was alluded to, Manbru- Encarnacion was not directly named in the excerpts from the Wild Cowboys book. She again requested a continuance and the IJ granted the motion. Before the continued merits hearing, Manbru-Encarnacion discharged counsel and, ultimately, appeared pro se at the contin- ued merits hearing. At the second hearing, Manbru-Encarnacion submitted other evidence, specifically, excerpts from a book about TWC, additional emails from Perez, and country conditions evi- dence. After the continued merits hearing, the IJ denied Manbru- Encarnacion’s application. It first determined that, after consider- ing the totality of the circumstances, Manbru-Encarnacion’s testi- mony was not credible. It found that, while Manbru-Encarnacion USCA11 Case: 23-10924 Document: 19-1 Date Filed: 01/10/2025 Page: 8 of 24
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had provided in his application that he had received death threats in the past from Perez and testified that he was personally con- fronted by him in Washington Heights, he then testified on cross- examination that Perez did not harm or threaten to harm him dur- ing their encounter. As to Manbru-Encarnacion’s reliance on the Wild Cowboys book as evidence his role as an informant was pub- licly known in the Dominican Republic, the IJ noted that Manbru- Encarnacion’s name did not appear in any of the excerpts from the book. In other words, it found, there was no evidence of a connec- tion between Manbru-Encarnacion and TWC. Next, while Man- bru-Encarnacion testified that TWC knew his address and tele- phone number, the IJ noted that he had conceded that the gang never harmed or attempted to harm him while he was in Florida and that he was not fearful of the gang while he lived there. The IJ found the letter from the FBI to be “[m]ost damaging” to his cred- ibility. It then noted that Manbru-Encarnacion had a history of making false statements to United States officials, as shown by his convictions for making false statements to obtain a passport and presenting himself as a United States citizen. The IJ next found Manbru-Encarnacion’s corroborative evi- dence unconvincing. First, it determined that, rather than bolster- ing his testimony, the letter from the FBI discredited Manbru-En- carnacion’s claim of future harm. The IJ reiterated that the ex- cerpts from Wild Cowboys did not name or identify him and found the emails that Manbru-Encarnacion presented as proof of threats to his safety did not contain threats. Finally, as to the letters con- taining information about criminals in the country, it decided that USCA11 Case: 23-10924 Document: 19-1 Date Filed: 01/10/2025 Page: 9 of 24
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these letters did not attribute their information to any source, much less a credible, objective one. The IJ found that Manbru-En- carnacion’s corroborative evidence failed to overcome his disbe- lieved testimony and, when coupled with the adverse-credibility finding, the lack of reliable corroborative evidence doomed his CAT claim. The IJ recognized that country conditions evidence showed corruption within the Dominican Republic government and a link between some government-sponsored security forces and torture of Dominican citizens. However, it found that this was not enough to meet Manbru-Encarnacion’s burden of proof, as a pattern of hu- man rights violations alone was insufficient to show that Manbru- Encarnacion was in danger of being tortured; there had to be evi- dence that he would be personally at risk of torture by or with the acquiescence of the government. It determined that Manbru-En- carnacion had not presented credible evidence to that effect and his claim was “overly speculative.” Thus, it denied Manbru-Encar- nacion’s application and ordered him removed to the Dominican Republic. Manbru-Encarnacion, still proceeding pro se, administra- tively appealed to the BIA. He stated that he had been detained throughout his removal proceedings and that he had provided vital evidence to his counsel that was never included in the record. He asserted that he had not received a copy of his file until April 1, 2020, and that he had not been properly prepared to testify. He USCA11 Case: 23-10924 Document: 19-1 Date Filed: 01/10/2025 Page: 10 of 24
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argued that he strongly believed that his record was incomplete and insufficient for the IJ to make an informed decision on his case. Manbru-Encarnacion also filed a brief in support of his ap- peal claiming his counsel had been ineffective. He asserted that he did not receive proper preparation from his counsel prior to his fi- nal hearing, and that it was clear from the record that he was de- prived of fair legal representation. He contended that he and his family had reached out to her via emails, phone calls, and letters, but that he never received any confirmation or acknowledgment of the receipt of these letters from his attorney. He argued that he had never been provided with the exhibits then presented on his behalf to the IJ, and that his counsel failed to present the Wild Cow- boys book, which was vital evidence, and that counsel had failed to present other evidence that he had provided to her. He contended that his attorney had failed to appropriately inquire with the Attor- ney General as to his informant file. In support, Manbru-Encar- nacion attached evidence, including: emails to his former counsel’s office; a letter from his former counsel; excerpts from Wild Cow- boys; the FBI’s 2020 letter; a description by Manbru-Encarnacion of some of Perez’s emails; several news articles; an excerpt from Wild Cowboys describing the methods of torture used by the Dominican Republic government; and a letter from Manbru-Encarnacion ask- ing the agency to grant his application and raising claims about his attorney’s representation. In April 2021, the BIA dismissed Manbru-Encarnacion’s ad- ministrative appeal. It explained that Manbru-Encarnacion did not USCA11 Case: 23-10924 Document: 19-1 Date Filed: 01/10/2025 Page: 11 of 24
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“meaningfully challenge the substantive grounds on which the [IJ] denied his application for protection under the CAT,” abandoning the issue. Instead, it noted, Manbru-Encarnacion had raised a claim for ineffective assistance of counsel. However, the BIA denied that claim because Manbru-Encarnacion had not complied with the procedural requirements of Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), overruled in part by Matter of Compean, 24 I. & N. Dec. 710, 710 (A.G. 2009), reinstated, 25 I. & N. Dec. 1 (A.G. 2009). Even if the procedural requirements of Matter of Lozada had been satis- fied, it explained, Manbru-Encarnacion had not shown prejudice. Specifically, it noted that the IJ allowed the parties to thoroughly develop the record; allowed his former counsel to make arguments after arriving late to the merits hearing; and permitted Manbru-En- carnacion to provide more testimony and documents while pro- ceeding pro se. Manbru-Encarnacion did not seek review of the BIA’s April 2021 decision. In June 2021, Manbru-Encarnacion, represented by counsel, moved to reopen. He argued that the evidence he had submitted showed that it was more likely than not that he would be tortured if he were removed to the Dominican Republic. He contended that errors by his attorney and by the IJ had prevented his case from being fairly heard. He alleged that there was a clear connection between the various TWC members that he had “snitched on and who he fear[ed] will kill him” in the Dominican Republic, and that those connections were substantiated by his affidavit, a letter from the FBI, emails, and excerpts from books describing TWC. He maintained that one or more persons in the Dominican Republic USCA11 Case: 23-10924 Document: 19-1 Date Filed: 01/10/2025 Page: 12 of 24
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connected to TWC—Cesar Perez, Yayo, and Ruben—will torture him “on account of [him] having worked as an FBI confidential in- formant.” He reiterated that Cesar had directly threatened him twice and had stalked and threatened him over several years. He contended that men in the Dominican Republic would kill him, and the government would acquiesce to his torture. He further alleged that TWC members enjoyed impunity in the Dominican Republic and pointed to Yayo’s short imprisonment for serious crimes there, which he argued showed acquiescence. Manbru-Encarnacion also reiterated his contentions that his initial counsel was ineffective. He contended that his attorney failed to prepare him for his hearing, failed to promptly obtain evi- dence he needed, failed to appear on his behalf during the merits hearing, and allowed an associate who did not control or guide his testimony to conduct his direct examination. He contended that these failures prejudiced him and that he, essentially, was forced to appear pro se at his merits hearing. He explained that, had his at- torney competently prepared his case and showed up on time, his CAT claim would have been clearly presented and would have been granted. Finally, Manbru-Encarnacion argued that he had sat- isfied the procedural requirements to bring an ineffective assistance claim under Matter of Lozada. Relatedly, he argued that the IJ abused its discretion in allowing his “stand-in” counsel to proceed with his case. Manbru-Encarnacion also attached various evidence to his motion to reopen to corroborate some of his testimony, and to USCA11 Case: 23-10924 Document: 19-1 Date Filed: 01/10/2025 Page: 13 of 24
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elaborate on his ineffective assistance claim. More recent country conditions evidence showed that, while the government of the Do- minican Republic had sought to punish officials who had commit- ted human rights abuses, reports of official impunity and corrup- tion remained widespread. Another affidavit by Manbru-Encar- nacion described the facts of his testimony in greater detail and fur- ther described the threats he had received. A 2021 letter from the FBI stated that Manbru-Encarnacion had been an informant from 2001 to 2004, and that, while it was “not currently aware of any threats of injury, [he] could be exposed to risk should he be de- ported to the Dominican Republic given the nature of the assis- tance he provided.” News articles, maps, and charts provided var- ious details about TWC. However, according to a letter his former counsel filed in response to the ineffective assistance of counsel claim, counsel believed Manbru-Encarnacion’s application lacked evidentiary support and that he had little chance of success on his CAT claim. The BIA denied Manbru-Encarnacion’s motion to reopen in February 2023. It noted that many of the submitted documents were duplicative of those the IJ considered. It concluded that, even if Manbru-Encarnacion’s newly presented evidence was not previ- ously available because of ineffective assistance of counsel, Man- bru-Encarnacion had not established that this evidence was likely to change the outcome of his case. It concluded that Manbru-En- carnacion had not presented evidence to show that government of- ficials in the Dominican Republic would consent or acquiesce to any harm committed against him by private actors in the country, USCA11 Case: 23-10924 Document: 19-1 Date Filed: 01/10/2025 Page: 14 of 24
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e.g., TWC. As to the other evidence relating to events in the 1990s and 2010, the BIA reasoned that it did not show that current Do- minican government officials would consent or acquiesce to harm done to Manbru-Encarnacion. It noted that the 2020 Human Rights Report revealed that the current Dominican government was trying to combat corruption by government officials. Accord- ingly, the BIA concluded that Manbru-Encarnacion had not shown a sufficient likelihood that the new evidence would have changed the result in his case and that, similarly, but for his former counsel’s deficiencies, he would have prevailed. The BIA also declined to revisit its prior decision on the fairness of the proceedings before the IJ. Manbru-Encarnacion timely petitioned for review of the BIA’s decision. II. STANDARDS OF REVIEW We review the BIA’s denial of a motion to reopen for an abuse of discretion, although we “review any underlying legal con- clusions de novo.” Dacostagomez-Aguilar v. U.S. Att’y Gen., 40 F.4th 1312, 1315 (11th Cir. 2022), cert. dismissed, 143 S. Ct. 1102 (2023). When reviewing for an abuse of discretion, we ask whether the BIA exercised its discretion arbitrarily or capriciously. Ferreira v. U.S. Att’y Gen., 714 F.3d 1240, 1243 (11th Cir. 2013). The BIA can abuse its discretion by misapplying the law in reaching its decision, or by failing to follow “its own precedents without providing a reasoned explanation for doing so.” Id. A petitioner bears a heavy burden to show arbitrariness or capriciousness in this context because USCA11 Case: 23-10924 Document: 19-1 Date Filed: 01/10/2025 Page: 15 of 24
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motions to reopen removal proceedings are disfavored. Mei Ya Zhang v. U.S. Att’y Gen., 572 F.3d 1316, 1319 (11th Cir. 2009). We review the legal question of whether a petition for review is ex- hausted de novo. See Morales v. U.S. Att’y Gen., 33 F.4th 1303, 1307 (11th Cir. 2022), overruled in part on other grounds by Santos-Zacaria v. Garland, 598 U.S. 411, 419-23 & n.2 (2023). III. ANALYSIS On appeal, Manbru-Encarnacion first concedes that he never petitioned for review of the BIA’s 2021 decision. Still, he ar- gues that we must review his underlying administrative appeal that led to the 2021 decision in order to determine whether the BIA abused its discretion in denying his motion to reopen. He argues, specifically, that the IJ’s adverse credibility finding should be given particular attention in considering his motion to reopen. In other words, he stresses, we must determine whether the evidence in the motion to reopen would have altered the adverse credibility deter- mination in assessing whether it would change the outcome. As to the merits of his ineffective assistance claim, Manbru- Encarnacion argues that the IJ and BIA erred in failing to consider the prejudice caused by the IJ’s decision to proceed without his cho- sen counsel present. He asserts that the IJ also never determined whether his testimony, standing alone, supported a favorable cred- ibility determination and, instead, determined the lack of corrobo- rating evidence to be determinative. He states that the IJ never concluded that his testimony was internally inconsistent or incon- sistent when compared with the other record evidence. He also USCA11 Case: 23-10924 Document: 19-1 Date Filed: 01/10/2025 Page: 16 of 24
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argues that his conviction for making false statements to obtain a United States passport “does not ipso facto mandate an adverse cred- ibility determination.” He maintains that the credibility determi- nation was based on his inability to fully present his claim because of ineffective assistance and that this Court should grant his peti- tion to allow him a meaningful opportunity to present his CAT claim. As to the new evidence he submitted in his motion to reo- pen, Manbru-Encarnacion argues that he put forward a sufficient explanation of why the individuals he fears want to harm him and the reason the Dominican government would either assist or ac- quiesce in those harms. He argues that evidence in the record shows a pattern of human rights abuses in the Dominican Repub- lic, and contends that the new evidence he submitted established that the government would approve or consent to those abusive practices being used against him. The government, in response, states that Manbru-Encar- nacion’s petition for review fails for procedural and substantive rea- sons. Procedurally, it agrees that, because Manbru-Encarnacion did not petition for review of the BIA’s prior decision, the sole ques- tion before this Court is whether the BIA abused its discretion in denying his motion to reopen. It asserts that Manbru-Encarnacion improperly raises challenges to determinations made by the agency in his first administrative appeal and fails to contest the BIA’s deci- sion on his motion to reopen, which concluded that he had failed USCA11 Case: 23-10924 Document: 19-1 Date Filed: 01/10/2025 Page: 17 of 24
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to demonstrate a prima facie case for CAT relief. It argues these arguments are unexhausted. Substantively, the government argues that the BIA did not abuse its discretion in concluding that the new evidence Man- bru-Encarnacion presented failed to demonstrate a sufficient likeli- hood of changing the result in his case. It asserts that much of the evidence that Manbru-Encarnacion presented to “materially en- hance” his claim had already been reviewed by the IJ and found insufficient to meet his burden. The government further asserts that the evidence Manbru-Encarnacion submitted was largely du- plicative, and none of it established an objective, direct link be- tween him and TWC or its members, or established a direct link between Perez and TWC or Yayo. It contends that the evidence also failed to establish that the Dominican government would con- sent or acquiesce to any feared harm by TWC. It maintains that, even with other evidence of threats, Manbru-Encarnacion failed to show a reasonable likelihood of changing the outcome of his case. It reiterates the BIA’s observation that the current country condi- tions that Manbru-Encarnacion presented with his motion did not support his claim because it reflected that the Dominican Republic was affirmatively trying to combat corruption, even if its efforts had not been successful. It asserts that governmental ineffective- ness at preventing private actors from torturing others is not offi- cial acquiescence. It argues the BIA reasonably concluded that the record did not demonstrate a government official in the Dominican Republic would consent or acquiesce to any harm to Manbru-En- carnacion. USCA11 Case: 23-10924 Document: 19-1 Date Filed: 01/10/2025 Page: 18 of 24
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A. Exhaustion Section 1252(d)(1) of the INA provides that a court can re- view a final order of removal only if the noncitizen “has exhausted all administrative remedies available to the [noncitizen] as of right.” INA § 242(d)(1), 8 U.S.C. § 1252(d)(1). We have held that “[a] petitioner has not exhausted a claim unless he has both raised the core issue before the BIA, and also set out any discrete argu- ments he relies on in support of that claim.” Jeune v. U.S. Att’y Gen., 810 F.3d 792, 800 (11th Cir. 2016) (citations and internal quotations omitted), overruled in part on other grounds by Santos-Zacaria, 598 U.S. at 419-23 & n.2. 2 However, exhaustion is “not a stringent requirement.” Indrawati v. U.S. Att’y Gen., 779 F.3d 1284, 1297 (11th Cir. 2015), overruled in part on other grounds by Santos-Zacaria, 598 U.S. at 419-23 & n.2. “Simply put, petitioners must have previ- ously argued the ‘core issue now on appeal’ before the BIA.” Id. (quoting Montano Cisneros v. U.S. Att’y Gen., 514 F.3d 1224, 1228 n.3 (11th Cir. 2008)). Section 1252(d)(1)’s exhaustion requirement is a claims-processing rule, so we generally apply it when it has been asserted by a party. Kemokai v. U.S. Att’y Gen., 83 F.4th 886, 891 (11th Cir. 2023). Here, the government argues that aspects of Manbru-Encar- nacion’s petition for review are unexhausted, specifically because
2 In 2023, the Supreme Court held that the obligation to exhaust administra-
tive remedies in § 1252(d)(1) is a claims-processing rule, not a jurisdictional limitation, and is subject to waiver and forfeiture, overturning our prior prec- edent to the contrary. Santos-Zacaria, 598 U.S. at 419-23 & n.2. USCA11 Case: 23-10924 Document: 19-1 Date Filed: 01/10/2025 Page: 19 of 24
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Manbru-Encarnacion did not petition for review of the 2021 BIA decision. We conclude Manbru-Encarnacion’s arguments are ex- hausted. In his motion to reopen, Manbru-Encarnacion asked the BIA to consider his new evidence in light of the IJ’s original rulings and, thus, his request that we do the same is part of the “core issue now on appeal.” Indrawati, 779 F.3d at 1297. Of course, as both parties agree, we lack jurisdiction to “review earlier trips through immigration proceedings.” Bing Quan Lin v. U.S. Att’y Gen., 881 F.3d 860, 870 (11th Cir. 2018). However, we may consider Manbru-Encarnacion’s arguments about the underlying proceed- ings in determining whether the BIA acted arbitrarily or capri- ciously in rejecting his arguments about those proceedings in his motion to reopen. Ferreira, 714 F.3d at 1243. We, therefore, turn to the merits of that question. B. Motion to Reopen & Ineffective Assistance of Counsel To be eligible for CAT relief, an applicant must show that he more likely than not will be tortured if removed to the proposed country of removal. 8 C.F.R. § 1208.16(c)(2); Reyes-Sanchez v. U.S. Att’y Gen., 369 F.3d 1239, 1242 (11th Cir. 2004). All relevant evi- dence must be considered, including his ability to relocate and hu- man rights violations within the country. 8 C.F.R. § 1208.16(c)(3). Pursuant to 8 C.F.R. § 1208.18(a)(1), “torture” is defined as: any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a per- son for such purposes as obtaining from him or her or a third person information or a confession, punish- ing him or her for an act he or she or a third person USCA11 Case: 23-10924 Document: 19-1 Date Filed: 01/10/2025 Page: 20 of 24
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has committed or is suspected of having committed, or intimidating or coercing him or her or a third per- son, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by, or at the instigation of, or with the consent or acquiescence of, a public official acting in an official capacity or other person acting in an official capacity.
To acquiesce, an official must, before the torture: (1) actually know of the torture, or be aware of its high probability and deliberately avoid learning the truth, and (2) breach his legal responsibility to intervene. Id. § 1208.18(a)(7). Officials do not acquiesce under the CAT if they intervene but are unsuccessful. See Sanchez-Castro v. U.S. Att’y Gen., 998 F.3d 1283, 1288 (11th Cir. 2021) (“[E]ven if [a petitioner] were right that the police are not effective at controlling [organized crime], it is dispositive that they are trying to do so.”); Reyes-Sanchez v. U.S. Att’y Gen., 369 F.3d 1239, 1243 (11th Cir. 2004) (“That the police did not catch the culprits does not mean that they acquiesced in the harm.”). A motion to reopen “shall state the new facts that will be proven at a hearing to be held if the motion is granted and shall be supported by affidavits or other evidentiary material.” INA § 240(c)(7)(A), (B), 8 U.S.C. § 1229a(c)(7)(A), (B); Verano-Velasco v. U.S. Att’y Gen., 456 F.3d 1372, 1376 (11th Cir. 2006). Motions to reopen may be granted if there is new evidence that “is material and was not available and could not have been discovered or pre- sented at the former hearing.” 8 C.F.R. §§ 1003.2(c)(1), 1003.23(b)(3). Evidence is “new” if it was unavailable or could not USCA11 Case: 23-10924 Document: 19-1 Date Filed: 01/10/2025 Page: 21 of 24
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have been presented before the IJ. Verano-Velasco, 456 F.3d at 1377. In addition, a petitioner must present new evidence that would likely change the outcome if proceedings before the IJ were reo- pened. Ali v. U.S. Att’y Gen., 443 F.3d 804, 813 (11th Cir. 2006). The BIA may deny a motion to reopen on any of three independent grounds: “failure to establish a prima facie case for the relief sought, failure to introduce previously unavailable, material evidence, and a determination that even if these requirements were satisfied, the movant would not be entitled to the discretionary grant of relief which he sought.” I.N.S. v. Doherty, 502 U.S. 314, 323 (1992). If a motion to reopen is based on ineffective assistance of counsel, the movant must show, “substantial, if not exact compli- ance with the procedural requirements of [Matter of] Lozada,” and that “his counsel’s deficient representations resulted in prejudice to him.” Dakane v. U.S. Att’y Gen., 399 F.3d 1269, 1274 (11th Cir. 2005). To show prejudice, a movant must show that “the performance of counsel is so inadequate that there is a reasonable probability that but for the attorney’s error, the outcome of the proceedings would have been different.” Id. We conclude that Manbru-Encarnacion has not shown the BIA abused its discretion in denying his motion to reopen. The evidence Manbru-Encarnacion submitted to the agency in his mo- tion to reopen falls into two categories: first, evidence that had not previously been before the agency—“new” evidence—and, sec- ond, evidence submitted with the motion to reopen that was iden- tical or substantially similar to the evidence the IJ had considered USCA11 Case: 23-10924 Document: 19-1 Date Filed: 01/10/2025 Page: 22 of 24
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in denying Manbru-Encarnacion’s application for CAT relief in the first instance. We address these two categories of evidence in turn and then address his ineffective assistance argument. As to the evidence that Manbru-Encarnacion presented in his motion to reopen that was new, we cannot conclude that the BIA abused its discretion. Specifically, this evidence did not show a link between TWC and the government of the Dominican Re- public sufficient to show acquiescence. See 8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)(7). The letter from the FBI does not show a link between TWC and the Dominican government, as the letter only indicates that Manbru-Encarnacion could be exposed to harm should he be deported. The letter from Manbru-Encar- nacion’s ex-wife, while also new, covers much of the same ground as the evidence submitted previously to the IJ. Thus, the BIA did not abuse its discretion in concluding that this new evidence would not have likely changed the result of the proceedings, Ali, 443 F.3d at 813, because it is still insufficient to prove that the Dominican government has a relationship with TWC such that it would acqui- esce to his torture, Sanchez-Castro, 998 F.3d at 1288; Reyes-Sanchez, 369 F.3d at 1243. Without this relationship element satisfied, fur- ther development of this claim would not have changed the out- come. Cf. Matter of L-O-G-, 21 I. & N. Dec. 413, 420 (BIA 1996) (stat- ing, in reviewing a motion to reopen, the question is “whether there is sufficient evidence proffered to indicate a reasonable likeli- hood of success on the merits, so as to make it worthwhile to de- velop the issues further at a full evidentiary hearing”). USCA11 Case: 23-10924 Document: 19-1 Date Filed: 01/10/2025 Page: 23 of 24
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The second category of evidence Manbru-Encarnacion sub- mitted with his motion to reopen—evidence that was identical or substantially similar to the evidence the IJ considered in denying his application for CAT relief in the first instance—also does not show the BIA abused its discretion. This evidence was not “new,” as is necessary to support a motion to reopen under BIA regula- tions. 8 C.F.R. §§ 1003.2(c)(1), 1003.23(b)(3); Verano-Velsaco, 456 F.3d at 1376-77 (explaining that evidence is “new” when it “was unavailable at the time of [the petitioner’s] previous hearing”). Moreover, because the IJ and BIA had considered substantially sim- ilar evidence during the initial denial and found it did not show Manbru-Encarnacion’s entitlement to CAT relief, the considera- tion of it again was unlikely to change the outcome either. See Ali, 443 F.3d at 813. We also conclude that Manbru-Encarnacion’s ineffective as- sistance argument is unavailing. 3 For many of the same reasons we have discussed, Manbru-Encarnacion has not established that he was prejudiced by his counsel’s alleged deficiencies. See Dakane, 399 F.3d at 1274 (“Prejudice exists when the performance of coun- sel is so inadequate that there is a reasonable probability that but
3 In ruling on his motion to reopen, the BIA determined that Manbru-Encar-
nacion had satisfied the procedural requirements of Matter of Lozada, but that he had not shown prejudice from any deficiency of his attorney. We, similarly, need not address the procedural requirements of Matter of Lozada, as we agree with the BIA’s holding on prejudice. See INS v. Bagamasbad, 429 U.S. 24, 25-26 (1976) (“As a general rule courts and agencies are not required to make find- ings on issues the decision of which is unnecessary to the results they reach.”). USCA11 Case: 23-10924 Document: 19-1 Date Filed: 01/10/2025 Page: 24 of 24
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for the attorney’s error, the outcome of the proceedings would have been different.”). Even after Manbru-Encarnacion’s original counsel withdrew, he had the opportunity to enter more evidence before the IJ issued a written decision and in his first administrative appeal. Then, Manbru-Encarnacion had the opportunity to submit more evidence in his motion to reopen. Given that Manbru-Encar- nacion has not shown that all of the evidence submitted—during his administrative appeal and during his motion to reopen—estab- lish that he is entitled to CAT relief, counsel’s failure to obtain and submit that evidence in Manbru-Encarnacion’s initial proceedings before the IJ did not alter the outcome of the proceedings. Id. For the same reasons, counsel’s failure to direct and elicit testimony during the hearing would not have altered the outcome of the pro- ceedings, as Manbru-Encarnacion was afforded opportunities to supplement his testimony, did so, and that evidence was found in- sufficient. We, thus, cannot say the BIA abused its discretion in finding that Manbru-Encarnacion did not suffer prejudice from his attorney’s performance. IV. CONCLUSION For these reasons, we conclude that Manbru-Encarnacion has not shown that the BIA abused its discretion in denying his mo- tion to reopen. Accordingly, we deny his petition for review. PETITION DENIED.