NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________
No. 20-3411 ___________
STEPHEN MALONEY BROWN, Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
____________________________________
On Petition for Review of a Decision of the United States Department of Justice Board of Immigration Appeals (BIA-1: A037-333-730) Immigration Judge: Nelson A. Vargas-Padilla ____________________________________
Submitted Under Third Circuit L.A.R 34.1(a) December 14, 2021
Before: GREENAWAY, JR., KRAUSE, and PHIPPS, Circuit Judges
(Opinion filed: May 31, 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. KRAUSE, Circuit Judge.
Stephen Maloney Brown, a Jamaican national, petitions for review of a decision
by the Board of Immigration Appeals (“BIA”) denying his motion to remand his removal
proceedings and dismissing his appeal from the decision of the Immigration Judge (“IJ”).
For the reasons set forth below, we will deny the petition.
Discussion1
In his motion to remand, Brown argues that his prior counsel provided ineffective
assistance by not filing an application for deferral of removal under the Convention
Against Torture (“CAT”) and by electing not to pursue relief before the IJ without his
knowledge or consent. To warrant remand, Brown “must demonstrate that ‘competent
counsel would have acted otherwise’ and that he was ‘prejudiced by counsel’s poor
performance.’”2 Calderon-Rosas v. Att’y Gen., 957 F.3d 378, 388 (3d Cir. 2020)
(quoting Fadiga v. Att’y Gen., 488 F.3d 142, 157 (3d Cir. 2007). Brown’s claim fails on
the prejudice prong.
To be eligible for deferral of removal under the CAT, Brown would need to show
that he would likely be tortured by or with the acquiescence of the Jamaican government
1 The BIA had jurisdiction under 8 C.F.R. § 1003.1(b)(3), and we have jurisdiction over Brown’s petition for review under 8 U.S.C. § 1252(a)(1). See Cruz v. Att’y Gen., 452 F.3d 240, 246 (3d Cir. 2006). We review the BIA’s denial of his motion to remand for abuse of discretion, see Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004), and “the Board’s determination of an underlying procedural due process claim,” including Brown’s ineffective assistance of counsel claim, de novo, Calderon-Rosas v. Att’y Gen., 957 F.3d 378, 383 (3d Cir. 2020). 2 Brown also satisfied the BIA’s procedural requirements for ineffective-assistance claims. See Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). 2 if he were removed to Jamaica. 8 C.F.R. § 1208.16(c)(2); Auguste v. Ridge, 395 F.3d
123, 151 (3d Cir. 2005). The evidence Brown submitted with his motion to remand,
however, is insufficient to establish a “reasonable probability” that he would have met the
standard for CAT relief and that “the IJ would not have entered an order of removal
absent counsel’s errors.” Fadiga, 488 F.3d at 159. Though Brown’s statement alleges
continuing threats against his life as recently as 2020, there is no evidence that the
threatened acts would be carried out by or with the acquiescence of the Jamaican
government. Likewise, while Brown stated that he fears his cousin and his associates
who have ties to the Jamaican government, he has provided no evidence of “what is
likely to happen” if he were removed or whether it would “amount to the legal definition
of torture.” Myrie v. Att’y Gen., 855 F.3d 509, 516 (3d Cir. 2017). Because Brown
cannot establish that he was prejudiced by his counsel’s failure to apply for CAT relief,
the BIA did not err by denying his motion to remand.
In his appeal of the IJ’s decision, Brown argues that the IJ deprived him of due
process by not ensuring that his waiver of the right to seek relief under the CAT was
made “voluntarily and intelligently.” Richardson v. United States, 558 F.3d 216, 219-20
(3d Cir. 2009). To establish a procedural due process violation, Brown must show “(1)
that he was prevented from reasonably presenting his case[,] and (2) that substantial
prejudice resulted.” Fadiga, 488 F.3d at 155 (quoting Khan v. Att’y Gen., 448 F.3d 226,
236 (3d Cir. 2006)). Because Brown cannot demonstrate that the alleged deprivation had
a reasonable likelihood of “affecting the outcome” of the proceedings, Cham v. Att’y
Gen., 445 F.3d 683, 694 (3d Cir. 2006), his due process claim also fails on prejudice
3 grounds.3
Finally, Brown argues that the IJ violated two BIA regulations, 8 C.F.R.
§§ 1240.11(a)(2) and 1240.11(c)(1) by not advising him that he could seek CAT relief.
He contends that, because these regulations “implicate fundamental statutory or
constitutional rights,” no showing of prejudice is required to merit remand. Leslie v.
Att’y Gen., 611 F.3d 171, 180 (3d Cir. 2010). Because neither regulation was violated,
however, these claims fail as well.
The first regulation, 8 C.F.R. § 1240.11(a)(2), requires that an IJ “inform the alien
of his or her apparent eligibility to apply for any of the benefits included in this chapter
and shall afford the alien an opportunity to make application during the hearing.” At the
May 8 hearing, Brown’s counsel informed the IJ that he had discussed with Brown his
eligibility to apply for asylum, withholding of removal, and relief under the CAT. The IJ
thus had no obligation to reiterate the availability of these forms of relief. Nonetheless,
before ordering Brown removed, the IJ provided an opportunity to apply for relief, which
Brown’s counsel declined. The IJ thus satisfied the requirements of § 1240.11(a)(2).4
3 The same standard for prejudice applies to both Brown’s ineffective-assistance claim and his procedural due process claims, see Fadiga, 488 F.3d at 159, and Brown argues in both claims that he was prejudiced by being prevented from seeking deferral of removal under the CAT. Thus, while the BIA did not directly address prejudice in connection with Brown’s procedural due process claim because it determined that he had not waived any constitutional or statutory rights, its discussion of prejudice with respect to his ineffective-assistance claim applies with equal force.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________
No. 20-3411 ___________
STEPHEN MALONEY BROWN, Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
____________________________________
On Petition for Review of a Decision of the United States Department of Justice Board of Immigration Appeals (BIA-1: A037-333-730) Immigration Judge: Nelson A. Vargas-Padilla ____________________________________
Submitted Under Third Circuit L.A.R 34.1(a) December 14, 2021
Before: GREENAWAY, JR., KRAUSE, and PHIPPS, Circuit Judges
(Opinion filed: May 31, 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. KRAUSE, Circuit Judge.
Stephen Maloney Brown, a Jamaican national, petitions for review of a decision
by the Board of Immigration Appeals (“BIA”) denying his motion to remand his removal
proceedings and dismissing his appeal from the decision of the Immigration Judge (“IJ”).
For the reasons set forth below, we will deny the petition.
Discussion1
In his motion to remand, Brown argues that his prior counsel provided ineffective
assistance by not filing an application for deferral of removal under the Convention
Against Torture (“CAT”) and by electing not to pursue relief before the IJ without his
knowledge or consent. To warrant remand, Brown “must demonstrate that ‘competent
counsel would have acted otherwise’ and that he was ‘prejudiced by counsel’s poor
performance.’”2 Calderon-Rosas v. Att’y Gen., 957 F.3d 378, 388 (3d Cir. 2020)
(quoting Fadiga v. Att’y Gen., 488 F.3d 142, 157 (3d Cir. 2007). Brown’s claim fails on
the prejudice prong.
To be eligible for deferral of removal under the CAT, Brown would need to show
that he would likely be tortured by or with the acquiescence of the Jamaican government
1 The BIA had jurisdiction under 8 C.F.R. § 1003.1(b)(3), and we have jurisdiction over Brown’s petition for review under 8 U.S.C. § 1252(a)(1). See Cruz v. Att’y Gen., 452 F.3d 240, 246 (3d Cir. 2006). We review the BIA’s denial of his motion to remand for abuse of discretion, see Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004), and “the Board’s determination of an underlying procedural due process claim,” including Brown’s ineffective assistance of counsel claim, de novo, Calderon-Rosas v. Att’y Gen., 957 F.3d 378, 383 (3d Cir. 2020). 2 Brown also satisfied the BIA’s procedural requirements for ineffective-assistance claims. See Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). 2 if he were removed to Jamaica. 8 C.F.R. § 1208.16(c)(2); Auguste v. Ridge, 395 F.3d
123, 151 (3d Cir. 2005). The evidence Brown submitted with his motion to remand,
however, is insufficient to establish a “reasonable probability” that he would have met the
standard for CAT relief and that “the IJ would not have entered an order of removal
absent counsel’s errors.” Fadiga, 488 F.3d at 159. Though Brown’s statement alleges
continuing threats against his life as recently as 2020, there is no evidence that the
threatened acts would be carried out by or with the acquiescence of the Jamaican
government. Likewise, while Brown stated that he fears his cousin and his associates
who have ties to the Jamaican government, he has provided no evidence of “what is
likely to happen” if he were removed or whether it would “amount to the legal definition
of torture.” Myrie v. Att’y Gen., 855 F.3d 509, 516 (3d Cir. 2017). Because Brown
cannot establish that he was prejudiced by his counsel’s failure to apply for CAT relief,
the BIA did not err by denying his motion to remand.
In his appeal of the IJ’s decision, Brown argues that the IJ deprived him of due
process by not ensuring that his waiver of the right to seek relief under the CAT was
made “voluntarily and intelligently.” Richardson v. United States, 558 F.3d 216, 219-20
(3d Cir. 2009). To establish a procedural due process violation, Brown must show “(1)
that he was prevented from reasonably presenting his case[,] and (2) that substantial
prejudice resulted.” Fadiga, 488 F.3d at 155 (quoting Khan v. Att’y Gen., 448 F.3d 226,
236 (3d Cir. 2006)). Because Brown cannot demonstrate that the alleged deprivation had
a reasonable likelihood of “affecting the outcome” of the proceedings, Cham v. Att’y
Gen., 445 F.3d 683, 694 (3d Cir. 2006), his due process claim also fails on prejudice
3 grounds.3
Finally, Brown argues that the IJ violated two BIA regulations, 8 C.F.R.
§§ 1240.11(a)(2) and 1240.11(c)(1) by not advising him that he could seek CAT relief.
He contends that, because these regulations “implicate fundamental statutory or
constitutional rights,” no showing of prejudice is required to merit remand. Leslie v.
Att’y Gen., 611 F.3d 171, 180 (3d Cir. 2010). Because neither regulation was violated,
however, these claims fail as well.
The first regulation, 8 C.F.R. § 1240.11(a)(2), requires that an IJ “inform the alien
of his or her apparent eligibility to apply for any of the benefits included in this chapter
and shall afford the alien an opportunity to make application during the hearing.” At the
May 8 hearing, Brown’s counsel informed the IJ that he had discussed with Brown his
eligibility to apply for asylum, withholding of removal, and relief under the CAT. The IJ
thus had no obligation to reiterate the availability of these forms of relief. Nonetheless,
before ordering Brown removed, the IJ provided an opportunity to apply for relief, which
Brown’s counsel declined. The IJ thus satisfied the requirements of § 1240.11(a)(2).4
3 The same standard for prejudice applies to both Brown’s ineffective-assistance claim and his procedural due process claims, see Fadiga, 488 F.3d at 159, and Brown argues in both claims that he was prejudiced by being prevented from seeking deferral of removal under the CAT. Thus, while the BIA did not directly address prejudice in connection with Brown’s procedural due process claim because it determined that he had not waived any constitutional or statutory rights, its discussion of prejudice with respect to his ineffective-assistance claim applies with equal force. 4 We disagree with the government’s argument that the IJ at Brown’s December 12 group hearing satisfied 8 C.F.R. § 1240.11(a)(2). First, a group colloquy outlining the various forms of relief available does not provide a noncitizen with individualized notice of “his or her” eligibility to apply for relief. 8 C.F.R. § 1240.11(a)(2); see also Moran-Enriquez 4 Under the second regulation, 8 C.F.R. § 1240.11(c)(1), if a noncitizen “expresses
fear of persecution or harm upon return to any of the countries to which [they] might be
removed,” the IJ shall (1) advise them that they may apply for fear-based relief and (2)
make available the appropriate forms. 8 C.F.R. § 1240.11(c)(1). This duty is triggered
when a noncitizen expresses fear of the kind that suggests a reasonable possibility that
they may be eligible for relief. See Jimenez-Aguilar v. Barr, 977 F.3d 603, 608 (7th Cir.
2020); C.J.L.G. v. Barr, 923 F.3d 622, 627 (9th Cir. 2019). Brown argues that threshold
was met by his counsel’s statement at the May 8 hearing that Brown “fear[ed] returning
to Jamaica” and that “under CAT . . . there’s something related to his cousins, they’re
setting him up with the police.” AR 197. But even if that statement should have alerted
the IJ that Brown might have been eligible for CAT relief, the IJ was also entitled to rely
upon counsel’s representation that he had already discussed with Brown the availability
of CAT relief. We cannot conclude in that situation that the IJ violated § 1240.11(c)(1).
Conclusion
For the foregoing reasons, we will deny the petition as to the BIA’s October 30,
2020 order.
v. I.N.S., 844 F.2d 420, 423 (9th Cir. 1989) (interpreting the “apparent eligibility” standard of 8 C.F.R. § 242.17(a) as requiring an IJ to advise an alien of the possibility of relief where his or her particular record “raises a reasonable probability” of eligibility). Second, at no point did the IJ provide Brown “an opportunity to make application” during the December 12 hearing. 8 C.F.R. § 1240.11(a)(2). 5