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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-14486 Non-Argument Calendar ________________________
Agency No. A094-570-601
THOMAS LENOR,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the Board of Immigration Appeals ________________________
(March 5, 2020)
Before ED CARNES, Chief Judge, JILL PRYOR, and ANDERSON, Circuit Judges.
PER CURIAM: Case: 18-14486 Date Filed: 03/05/2020 Page: 2 of 17
Thomas Lenor entered the United States as a refugee in 2004. Soon after he
was arrested for and convicted of petit theft. After that, he continued to commit
more crimes, including violent ones. The Department of Homeland Security then
sought to remove Lenor based on his extensive criminal conduct. In time Lenor
conceded removability but tried to avoid removal on other grounds. He filed an
application for a waiver of inadmissibility and an adjustment of status under
8 U.S.C. § 1159(a), (c), as well as an application for withholding of removal under
8 C.F.R. § 1208.16(c). An Immigration Judge denied his applications. The Board
of Immigration Appeals then dismissed his appeal. This is his petition for review
of the Board’s decision.
I.
Lenor is a native and citizen of Sierra Leone. He was admitted to the United
States as a refugee in February 2004. In 2010 the Department of Homeland
Security issued Lenor a notice to appear and charged him as being removable
under 8 U.S.C. § 1227(a)(2)(A)(iii) for having been convicted of an aggravated
felony based on his Florida convictions for burglary of a dwelling, criminal
mischief, burglary of a dwelling with an assault or a battery, robbery with a
firearm, and third-degree grand theft of a motor vehicle. The Department later
charged Lenor with two additional grounds for removability in connection with his
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Florida conviction for possession of cocaine. He eventually conceded removability
for having been convicted of that offense. See 8 U.S.C. § 1227(a)(2)(B)(i).
After receiving a notice to appear, Lenor filed an application for a waiver of
inadmissibility and an adjustment of status. He is an inadmissible refugee because
of his criminal conduct and would require a waiver to adjust his status under
§ 1159(a). His waiver application stated that his parents and brother were United
States citizens and that he would suffer exceptional and extremely unusual
hardship if removed to Sierra Leone given the poor country conditions, his “mental
health condition,” and the lack of mental health care.
Lenor then filed a motion seeking permission to have expert witness Dr.
Ayana Jordan testify over the phone about the stigma surrounding mental illness
and the lack of mental health treatment in Sierra Leone. Lenor stated that he was
indigent and could not afford to pay an expert witness, that the law clinic
representing him pro bono could not reimburse Dr. Jordan’s travel expenses, and
that Dr. Jordan was providing her services pro bono and could not pay her own
travel expenses, so she needed to testify by phone. The IJ denied the motion but
did consider a written statement submitted by Dr. Jordan. 1
1 Although a cover sheet and blank order form for this motion are included in the record, the completed order is not. But the parties agree that the IJ denied the motion. 3 Case: 18-14486 Date Filed: 03/05/2020 Page: 4 of 17
Lenor also applied for withholding of removal under the United Nations
Convention Against Torture, 8 C.F.R. § 1208.16(c). He stated that he was entitled
to CAT relief because if he returned to Sierra Leone, he would be tortured and
otherwise harmed by the government as well as by private individuals on account
of his mental health condition. He said it was likely he would be committed to
Kissy Mental Hospital (a Sierra Leone mental health facility) and subjected to
cruel and inhumane treatment amounting to torture, such as being chained to a bed
for long periods of time. He claimed that, when he was nine years old, government
soldiers in Sierra Leone accused him of being a rebel, aimed an assault rifle at his
head, and threatened to kill him. And he said that he had witnessed people being
killed, burned alive, or dismembered, and saw others committing suicide to avoid
abuse. He also stated that his family was threatened and mistreated.
The IJ held an individual merits hearing on Lenor’s applications and set
aside a time period of an hour and a half for the hearing. During that hearing a law
student representative conducted Lenor’s direct examination and made the closing
argument. The IJ asked the law student representative twice if he was done with
Lenor’s direct, and he said yes both times. He also declined to redirect Lenor
when offered the opportunity. Lenor’s lead counsel conducted a direct
examination of Tamara Fisher, a chaplain who was called as a witness for Lenor.
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Lenor also entered several exhibits into the record, including affidavits from his
mother, father, and brother, and one from his mental health expert, Dr. Jordan.
After the hearing the IJ issued a written opinion rejecting Lenor’s
applications and ordering him removed to Sierra Leone. The IJ’s opinion denied
Lenor’s application for a waiver of inadmissibility. And because Lenor remained
inadmissible, the IJ automatically denied his application for an adjustment of
status. The IJ also denied his application for CAT relief, determining that he had
not established that it was more likely than not he would be tortured at the
instigation of or with the consent or acquiescence of government officials if
removed to Sierra Leone.
Lenor appealed the IJ’s decision to the Board. He contended that the IJ
erred (1) in not exercising his discretion to grant Lenor a § 1159(c) waiver of
inadmissibility; (2) by finding that Lenor had not met his burden for CAT relief,
despite the record demonstrating (a) that the government would acquiesce in his
torture by private individuals and (b) that the poor conditions at Kissy Mental
Hospital were created with the specific intent to torture patients; and (3) by
depriving him of due process because of the IJ’s conduct during the hearing.
Lenor also moved to remand the case to the IJ for consideration of an Economist
article submitted on appeal discussing the terrible state of Kissy Mental Hospital.
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The Board rejected his contentions, dismissed his appeal, and denied his motion to
remand. Lenor then petitioned us for review.2
II.
This court’s jurisdiction to review the Board’s decision is limited. We have
jurisdiction to review only colorable constitutional or legal claims. 8 U.S.C.
§ 1252(a)(2)(D); Arias v. U.S. Att’y Gen., 482 F.3d 1281, 1283 (11th Cir. 2007).
We generally lack jurisdiction to review a final order of removal against an alien
who is removable for having committed certain crimes (including controlled
substance offenses), a discretionary decision of the Attorney General or the
Secretary of Homeland Security (including a decision to grant or deny a § 1159(c)
waiver), and any factual determinations made by the Board or IJ. Cole v. U.S.
Att’y Gen., 712 F.3d 517, 523–24, 532–33 (11th Cir. 2013); Makir-Marwil v. U.S.
Att’y Gen., 681 F.3d 1227, 1234 n.4 (11th Cir. 2012). We lack jurisdiction to
consider meritless constitutional or legal claims and “abuse of discretion claims
merely couched in constitutional language.” Arias, 482 F.3d at 1284.
When reviewing colorable constitutional or legal claims, we do so under a
de novo standard of review. Id. at 1283. We review the Board’s decision, unless
and to the extent the Board expressly adopted the IJ’s decision. Perez-Zenteno v.
U.S. Att’y Gen., 913 F.3d 1301, 1306 (11th Cir. 2019). Where the Board agrees
2 This Court granted Lenor’s motion for a stay of removal pending review of his petition. 6 Case: 18-14486 Date Filed: 03/05/2020 Page: 7 of 17
with the IJ’s decision and then adds its own observations, we will review the
decisions of both the Board and the IJ. Id.
III.
Lenor makes four contentions in his petition: (1) the Board erred in
concluding that the IJ did not violate his due process rights by limiting testimony
and demonstrating hostility against Lenor; (2) the Board erred in denying his
application for CAT relief; (3) the Board misapplied the law in denying his motion
to remand to introduce new evidence; and (4) the Board applied the wrong legal
standard and failed to consider all relevant factors in affirming the IJ’s denial of his
application for a waiver of inadmissibility.
A.
Lenor contends that the IJ who conducted his individual hearing violated his
due process rights. First, he alleges that the IJ engaged in bullying and hostile
conduct by doing things such as repeatedly interrupting Lenor’s counsel (but not
counsel for the government) and by treating his law student representatives poorly.
Second, he argues that the IJ wrongly refused to allow Dr. Jordan to testify by
phone and certain members of his family to testify in person.
The Due Process Clause requires that aliens be given notice, an opportunity
to be heard, and a full and fair hearing. Tang v. U.S. Att’y Gen., 578 F.3d 1270,
1275 (11th Cir. 2011). To establish a due process violation, an alien must show
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both that he was deprived of liberty without due process and that this deprivation
caused him substantial prejudice. Id. To show substantial prejudice, the alien
must demonstrate that, absent the alleged violations, the outcome of the proceeding
would have been different. Alhuay v. U.S. Att’y Gen., 661 F.3d 534, 548 (11th
Cir. 2011).
Lenor cannot show that a due process violation occurred. Even assuming
that he suffered a deprivation of liberty because of the IJ’s conduct (and we are not
holding that he did), his due process claims still fail because he has not
demonstrated that he was substantially prejudiced. There is no evidence that the
IJ’s interruptions, remarks, and other actions prejudiced him; Lenor does not point
to any evidence that he was prohibited from entering into the record that would
have changed the outcome. Nor was he substantially prejudiced by the exclusion
of his expert witness’ telephonic testimony or his family members’ live testimony,
given that he provided, and the IJ considered, written statements from those
witnesses. In his opinion the IJ repeatedly referenced Dr. Jordan’s affidavit. For
those reasons, we deny Lenor’s petition as to his due process claims.3
B.
3 Lenor properly exhausted his due process claims by sufficiently raising them before the Board such that the Board could, and did, consider them. Bing Quan Lin v. U.S. Att’y Gen., 881 F.3d 860, 866–68 (11th Cir. 2018). 8 Case: 18-14486 Date Filed: 03/05/2020 Page: 9 of 17
Lenor contends that the Board erred in denying his application for CAT
relief by rejecting his argument that if removed, given his mental health condition,
he would likely be tortured either by unnamed members of the civilian population
with the acquiescence of government officials or by public officials if detained at
Kissy Mental Hospital.
An alien is entitled to CAT relief if he establishes that it is more likely than
not that he will be tortured in the country of removal by public officials or by
private individuals with public officials’ acquiescence. Jean-Pierre v. U.S. Att’y
Gen., 500 F.3d 1315, 1320, 1322–23 (11th Cir. 2007). For an act to constitute
torture, “it must be: (1) an act causing severe physical or mental pain or suffering;
(2) intentionally inflicted; (3) for an illicit or proscribed purpose; (4) by or at the
instigation of or with the consent or acquiescence of a public official who has
custody or physical control of the victim; and (5) not arising from lawful
sanctions.” Id. at 1327.
We have clarified that a CAT relief claim must be separated into two
inquiries — (1) the likelihood a foreign government would engage in a particular
course of conduct, and (2) whether a particular undisputed or adjudicated fact
pattern amounts to torture. Zhou Hua Zhu v. U.S. Att’y Gen., 703 F.3d 1303, 1311
(11th Cir. 2013).
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Different standards of review apply to these distinct inquiries. The
likelihood that a foreign government would engage in a particular course of
conduct or acquiesce in it is an unreviewable factual finding. See Cole, 712 F.3d
at 533. But the determination of whether a particular set of facts meets the
definition of torture is a legal conclusion we review de novo. Id. at 534.
1.
Lenor argues that the Board erred in affirming the IJ’s decision denying his
CAT claim on the grounds that there was insufficient evidence that (1) Lenor
would experience harm by private individuals rising to the level of torture or (2)
that government officials would acquiesce in such conduct by private individuals.
Lenor asserts that the Board applied the incorrect standard of review (clear
error instead of de novo) in concluding that the evidence indicated the harm
inflicted by private individuals would not rise to the level of torture. And on the
question of whether government officials would acquiesce, he asserts that the
Board should have concluded that the IJ committed clear error in finding that the
record contained insufficient evidence that the Sierre Leonean government would
acquiesce in Lenor’s torture by private individuals.
Even assuming that the Board erred by applying clear error instead of de
novo review in reviewing the IJ’s finding that private individuals would not inflict
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torture on Lenor, his CAT claim still fails.4 That is because to succeed Lenor must
show both that he would experience harm by private individuals rising to the level
of torture and that government officials would acquiesce in such conduct. And the
likelihood of a future event — such as whether government officials will acquiesce
regarding private individuals’ conduct — is an unreviewable factual determination.
See Zhou Hua Zhu, 703 F.3d at 1311 (“[W]hether [a] foreign government would
engage in ‘a particular course of conduct’ [is] a factual issue, which [this court]
could not review.” (quoting Jean-Pierre, 500 F.3d at 1321)); see also Cole, 712
F.3d at 522, 533 (describing this question as a factual determination).
Because the Board’s decision is sustainable “solely based on the IJ’s factual
finding that the” government of Sierra Leone will not acquiesce in Lenor’s torture,
we cannot review the BIA’s decision on this issue and dismiss Lenor’s petition as
to this claim. Cole, 712 F.3d at 533.
4 The Board has discretion to “prescribe its own procedural rules,” see Pinos-Gonzalez v. Mukasey, 519 F.3d 436, 440–41 (8th Cir. 2008) (citing 8 C.F.R. § 1003.1(d)(4)), including whether to review de novo questions of law, 8 C.F.R. 1003.1(3)(ii) (“The Board may review questions of law . . . de novo.”) (emphasis added). But the Board has stated that it reviews de novo legal determinations such as whether a pattern of facts constitutes torture. See, e.g., Matter of Z-Z-O-, 26 I. & N. Dec. 586, 590–91 (2015); BIA Prac. Man. Ch. 1 (E.O.I.R., 1999 WL 33435426, § 1.4(c)(i)(B)). And the Board’s failure to adhere to its own procedures may be a legal error enforceable against the Board. See Washington v. Comm’r, 906 F.3d 1353, 1361 (11th Cir. 2018) (holding that an agency’s internal procedures are enforceable against the agency only “where failure to enforce such regulations would adversely affect substantive rights of individuals”); see also Pinos-Gonzales, 519 F.3d at 440–41. But we need not, and do not, decide that question in this case. 11 Case: 18-14486 Date Filed: 03/05/2020 Page: 12 of 17
2.
Lenor also contends that the Board erred by denying his CAT claim after
concluding that public officials at Kissy Mental Hospital would not torture him.
We have jurisdiction over the following legal question: Are the poor conditions
(including chaining up patients) at Kissy created or maintained for the purposes of
torturing patients? We review de novo this question and any component part of
this question. 5
Lenor argues that the bad conditions at Kissy are caused not by lack of
resources but by public officials intending to inflict severe pain or suffering. He
asserts that the extreme stigma against mental illness is sufficient evidence of
specific intent. He says this stigma is what causes Sierra Leone to underfund
Kissy. He also argues that this stigma, not a lack of resources, is why patients are
chained to their beds.
The Board concluded that there was insufficient evidence demonstrating that
the poor conditions were caused by public officials’ intent to torture. The Board
concluded that the deplorable conditions at Kissy were instead caused by a lack of
resources. Similarly, it held that the practice of chaining up or otherwise
5 Lenor did not argue that the Board applied the wrong standard of review to the question of whether the conditions at Kissy constitute torture. He has thus waived any argument about that. See Cont’l Tech. Servs., Inc. v. Rockwell Int’l Corp., 927 F.2d 1198, 1199 (11th Cir. 1991) (“An argument not made is waived . . . .”). 12 Case: 18-14486 Date Filed: 03/05/2020 Page: 13 of 17
restraining patients was not done to torture but to control patients and keep them
from moving around, and that there was “not an intention to harm those afflicted
with mental illness.”
Even though the record shows that conditions at Kissy are terrible, they do
not constitute torture for present purposes. The evidence establishes that the poor
conditions at Kissy are caused by a lack of resources. Even if stigma related to
mental illness causes Sierra Leone to spend less than it otherwise would on mental
health care, the failure of a poor country to maintain a better mental health facility
when it theoretically could spend more money is not torture. See Jean-Pierre, 500
F.3d at 1323–24 (citing Cadet v. Bulger, 377 F.3d 1173 (11th Cir. 2004)). And the
evidence indicates that the practice of chaining patients is done to control them
(especially agitated patients) instead of to inflict severe pain or suffering.
The Board thus properly denied Lenor CAT relief on his claim it was more
likely than not that he would be tortured at Kissy Mental Hospital.
C.
Lenor contends that the Board committed legal error in denying his motion
to remand his case to the IJ so that the IJ could consider in the first instance an
Economist article about the conditions at Kissy Mental Hospital. The article was
published weeks after the IJ’s decision. Lenor argues that the article is new
evidence that undermines the IJ’s conclusion that the Sierra Leone government
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lacked the specific intent to torture the mentally ill. Much of the article discusses
the terrible state of the hospital. It also includes quotations from Dr. Abdul Jalloh,
a psychiatrist and new “director” of Kissy. The IJ’s opinion described him as
someone trying to improve Kissy. The article portrays him in an unfavorable light.
Where a motion to remand seeks to introduce evidence that has not
previously been presented, it should be treated as a motion to reopen under
8 C.F.R. § 1003.2(c) and subjected to the same substantive requirements. See
Najjar v. Ashcroft, 257 F.3d 1262, 1301 (11th Cir. 2001).
A person filing a motion to reopen bears a heavy burden and must present
evidence of such a nature that the Board is satisfied that, if proceedings before the
IJ were reopened the new evidence offered would likely change the result in the
case. Ali v. U.S. Att’y Gen., 443 F.3d 804, 813 (11th Cir. 2006). Motions to
reopen are particularly disfavored. Zhang v. U.S. Att’y Gen., 572 F.3d 1316, 1319
(11th Cir. 2009). And the Board has broad discretion to grant or deny them.
Najjar, 257 at 1302. But they may be granted if there is new evidence that is
material, was not previously available, and could not have been discovered or
presented at the removal hearing. See 8 C.F.R. §§ 1003.2(c)(1), 1003.23(b)(3).
The Board must also give “reasoned consideration” in its ruling on the motion.
See Gaksakuman v. U.S. Att’y Gen., 767 F.3d 1164, 1168 (11th Cir. 2014).
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Our jurisdiction to review the Board’s decision extends only to colorable
legal issues. First, the Board correctly applied the relevant legal standard when
ruling on Lenor’s motion for a remand and specifically considered whether “the
new evidence would likely change the result in the case given the lack of specific
intent to torture, as set forth above.” Second, the Board also gave adequate
reasoned consideration to Lenor’s motion. It considered the article Lenor
submitted, acknowledged that it was new evidence, and noted that it contradicted
some of the IJ’s findings. And the Board gave a reasoned justification for denying
the motion anyway — it would not likely change the result of the case given the
lack of evidence in the record of a specific intent to torture mentally ill patients.
We thus deny the petition as to Lenor’s motion to remand.
D.
Lenor contends that the Board committed two legal errors in considering
whether he should receive a § 1159(c) waiver of inadmissibility. First, he claims
the Board failed to apply de novo review when considering the IJ’s waiver denial,
and instead improperly deferred to the IJ’s decision. Second, he states that the
Board failed to consider all the relevant factors when deciding whether to exercise
discretion and grant the waiver. Specifically, he argues that because the Board
erroneously concluded that Lenor failed to demonstrate that he would be tortured if
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returned to Sierra Leone, the Board failed to consider the fact of this torture when
weighing the positive and negative equities.
In evaluating an application for a waiver of inadmissibility, the IJ must first
determine if a refugee is a violent or dangerous individual and, if so, the refugee
must satisfy both the general statutory standard and a heightened “extraordinary
circumstances” standard. Makir-Marwil, 681 F.3d at 1234 n.4. Lenor did not
dispute before the Board the IJ’s finding that he is a violent or dangerous
individual, and he does not dispute it here. But even if a refugee is subject to the
heightened standard for violent individuals, the IJ may waive inadmissibility if
removal would result in exceptional and extremely unusual hardship. Id. at 1236.
In this case the IJ found that Lenor would suffer exceptional and extremely unusual
hardship if removed, but the IJ declined to exercise his discretion after weighing
the equities because of Lenor’s extensive criminal record and insufficient evidence
of genuine rehabilitation.
We generally lack jurisdiction to review the discretionary denial of an
application for a waiver of inadmissibility. Id. at 1234 n.4. We cannot reweigh the
positive and negative equities, because whether Lenor was entitled to the waiver
was a discretionary decision. Id. But we do retain jurisdiction to consider
questions of law such as whether a material relevant factor should have been part
of the analysis but was left out. See id. at 1236.
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First, the Board did correctly conduct de novo review. The Board explicitly
stated that “[u]pon de novo review” it was affirming the IJ’s determination that
Lenor did not merit a waiver. Lenor acknowledges this language but asserts that
the Board’s deferential language demonstrates it was actually conducting clear
error review. But while the Board agreed with the IJ’s decision, it went through all
the positive and negative aspects of Lenor’s case before reaching its own decision
to affirm the IJ. The fact the Board agreed with the IJ’s analysis does not convert
its de novo review to clear error review.
Second, the Board’s detailed analysis shows that it weighed all the material
relevant factors. The Board discussed Lenor’s long residence in the United States,
his family ties, and the trauma he experienced. It also considered the challenges he
would face upon returning to Sierra Leone, including the unique hardships he
would suffer because of his mental health. And it considered rehabilitation
potential. But after weighing the negative equities such as Lenor’s extensive
criminal history, it denied him a waiver. We cannot reweigh the equities. See
Arias, 482 F.3d at 1284.
Because the Board conducted de novo review and weighed all the material
relevant factors and given that we have concluded the Board did not otherwise
commit legal error in denying Lenor’s petition, we deny his petition on this issue.
PETITION DISMISSED IN PART AND DENIED IN PART.