W. R. R. v. Attorney General United States

• Court: Court of Appeals for the Third Circuit
• Decided: April 4, 2023
• Docket: 22-1142
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________

No. 22-1142 ______________

W.R.R., Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA ______________

On Petition for Review of a Decision of the Board of Immigration Appeals (Agency No. A207-054-101) _________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) on December 8, 2022

Before: SHWARTZ, MATEY, and FUENTES, Circuit Judges

(Filed: April 4, 2023)

______________

OPINION* ______________

* This disposition is not an opinion of the full Court and under I.O.P. 5.7 does not constitute binding precedent. FUENTES, Circuit Judge.

W.R.R. petitions for review of decisions of the Board of Immigration Appeals

(“BIA”). For the reasons that follow, we will deny the petition.1

I.

W.R.R. is a native and citizen of the Dominican Republic. W.R.R. entered the

United States at a young age and was later granted Deferred Action for Childhood Arrivals.

In March 2016, W.R.R. was arrested on a 14-count indictment, alleging that W.R.R. was in

a stolen vehicle while in possession of a handgun, and that W.R.R. had attempted to harm

another person. W.R.R. pleaded guilty to a violation of N.J. Stat. Ann. Section 2C:29-2(b)

for eluding arrest by motor vehicle creating a risk of death or injury and was sentenced to

eight years of incarceration. The Department of Homeland Security initiated removal

proceedings against W.R.R. via a Notice to Appear.

W.R.R. initially appeared before the Immigration Judge (“IJ”) pro se. W.R.R.

applied for asylum, withholding of removal, and relief under the Convention Against

Torture (“CAT”). The IJ found that W.R.R.’s felony eluding conviction was a particularly

serious crime, rendering W.R.R. ineligible for asylum and withholding of removal. The IJ

also found that W.R.R. had not met the burden of demonstrating eligibility for CAT relief

because W.R.R. had not shown that public officials would consent or acquiesce to torture

at the hands of gang members or that it was more likely than not that W.R.R. would be

tortured if removed.

1 The petitioner's motion to amend the caption to refer to the petitioner as “W.R.R” is granted, and the Clerk is directed to amend the caption. 2 W.R.R. obtained counsel and appealed to the BIA, which affirmed the IJ’s decision

in part and remanded in part. The BIA upheld the finding that W.R.R.’s conviction

qualified as a particularly serious crime. But the BIA remanded to the IJ for further

proceedings on a CAT claim based on W.R.R.’s identity as a bisexual, gender non-binary

person.

On remand, the IJ denied W.R.R.’s CAT claim, finding that it was not more likely

than not that W.R.R. would suffer torture at the instigation or acquiescence of a public

official. The IJ further found that W.R.R. failed to identify specific evidence that W.R.R.

personally would be tortured. W.R.R. moved for reconsideration—arguing W.R.R. should

have had a chance to testify and supplement the record on remand—which was denied.

W.R.R. appealed both decisions, and the BIA dismissed both appeals. W.R.R. now

petitions this Court for review.

II.

We have jurisdiction to review the BIA’s final order of removal, limited to

“constitutional claims or questions of law.”2 We review the BIA’s determination that

W.R.R.’s state conviction constituted a particularly serious crime and W.R.R.’s

constitutional due process claims de novo.3

2 8 U.S.C. §§ 1252(a)(5), (a)(2)(C), (a)(2)(D). 3 Luziga v. Att’y Gen., 937 F.3d 244, 252 n.9 (3d Cir. 2019); Fadiga v. Att’y Gen., 488 F.3d 142, 153 (3d Cir. 2007). 3 III.

W.R.R. raises several issues for review, mainly arguing that (1) the BIA and IJ

(together, the “Agency”) erred by finding that W.R.R. committed a particularly serious

crime; (2) the Agency erred by denying CAT deferral; and (3) W.R.R. was denied due

process in the form of an opportunity to present additional evidence and testimony.

W.R.R. first challenges the Agency’s finding that the conviction for eluding arrest

under N.J. Stat. Ann. Section 2C:29-2(b) constituted a particularly serious crime,

foreclosing the possibility of relief via asylum and withholding of removal. Where the

evidence indicates that an applicant for asylum or withholding of removal may have been

convicted of a particularly serious crime, the Agency must first determine whether the

offense’s elements “potentially bring the crime into a category of particularly serious

crimes.”4 If so, the Agency must determine whether the offense is particularly serious by

considering all reliable information about the facts and circumstances of the offense,

“including the conviction records and sentencing information, as well as other information

outside the confines of a record of conviction.” 5 W.R.R. was convicted in the second

degree, meaning that the attempt to elude created “a risk of death or injury to any person.” 6

The Agency properly concluded that the offense was potentially particularly serious and

4 Luziga, 937 F.3d at 253 (quoting In re N-A-M-, 24 I. & N. Dec. 336, 342 (BIA 2007)). 5 Id. (quoting In re N-A-M-, 24 I. & N. Dec. at 342); see also Sunuwar v. Att’y Gen., 989 F.3d 239, 249 (3d Cir. 2021) (explaining that the Agency considers all reliable information about the facts and circumstances of the offense, including the conviction records and sentencing information, as well as other information outside the confines of a record of conviction). 6 N.J. Stat. Ann. Section 2C:29-2(b). 4 then considered the circumstances of the conviction, including the length of the sentence

and that W.R.R. was in possession of a handgun. The Agency therefore did not err in

finding that the facts of W.R.R.’s conviction met the standard for a particularly serious

crime.7

Next, we see no reason to disturb the Agency’s denial of CAT relief. CAT deferral

may be granted even to a “particularly serious” offender if they are likely to be tortured if

returned to their country of origin by, or with the consent or acquiescence of, the

government.

W.R.R. argues that the Agency erred in two ways: that it failed to apply the two-

pronged Myrie framework for adjudicating CAT claims, and that the IJ ignored evidence

favorable to W.R.R., including evidence detailing the threat of violence that LGBT

individuals face in the Dominican Republic. The BIA initially remanded to the IJ for a

proper analysis under Myrie, noting the lack of findings on governmental acquiescence. In

assessing a CAT claim, the Immigration Judge should consider (1) what is likely to happen

to the petitioner if removed, and (2) whether what is likely to happen amounts to the legal

definition of torture.8

On remand, the IJ held that W.R.R. failed to establish that it is more likely than not

that W.R.R. would suffer torture at the instigation, consent, or acquiescence of a public

official. Instead, the IJ found that W.R.R. “will return to the Dominican Republic

7 Having upheld the Agency’s conclusion that W.R.R. has been convicted of a particularly serious crime, we need not discuss whether W.R.R. committed a crime of moral turpitude. 8 Myrie v. Att'y Gen. United States, 855 F.3d 509, 516 (3d Cir. 2017). 5 unharmed, connect with family friends, and eventually seek out employment.”9 And while

the IJ credited W.R.R.’s general country conditions evidence, the IJ found that the evidence

did not show that W.R.R. would be specifically and individually targeted because of

W.R.R.’s gender identity or sexual orientation for harm that rises to the level of torture.10

The IJ adequately considered the totality of the record, including evidence favorable to

W.R.R., and we see no error.

W.R.R. next argues that the IJ erred by failing to hold a hearing on remand.

Similarly, W.R.R. argues that the IJ violated W.R.R.’s right to testify by not allowing

W.R.R. to testify about gender identity and by not reopening the record to consider more

evidence. First, the BIA’s decision ordering remand did not require the IJ to hold a new

hearing. Further, W.R.R. had the opportunity to testify at an initial hearing, and the IJ on

remand considered W.R.R.’s affidavit, letters, psychological evaluation, and country

condition reports. It is unclear what additional evidence would have been provided at a

second hearing, and W.R.R. has failed to make a showing that this alleged lack of

opportunity had the potential to impact the outcome of the proceedings. W.R.R. therefore

has not established a due process violation. 11

9 Administrative Record at 76. 10 See, e.g., Tarrawally v. Ashcroft, 338 F.3d 180, 188 (3d Cir. 2003) (holding that country condition reports “alone [were] insufficient to demonstrate that it is more likely than not that a particular civilian, in this case [the petitioner], will be tortured” if returned to his home country). 11 A petitioner must show (1) that they were prevented from reasonably presenting their case, and (2) that substantial prejudice resulted. Serrano-Alberto v. Att’y Gen., 859 F.3d 208, 213 (3d Cir. 2017). 6 W.R.R. also asserts that the IJ applied an improper legal standard to the motion to

remand, arguing that W.R.R. only needed to make out a prima facie case for relief, but that

the evidence submitted with the motion was used to deny relief. The IJ concluded,

however, that W.R.R.’s generalized fear was insufficient for CAT relief. Therefore, even

if W.R.R. had presented sufficient evidence to prove the truth of the assertions, W.R.R.

would not be entitled to relief.

Finally, W.R.R. argues that the Agency erred in failing to create a detailed record

sufficient for appellate review. We disagree; the Agency’s decisions are sufficiently

supported to permit our meaningful review.12 As to W.R.R.’s argument that the Board

violated its own regulations by not assigning this case to a three-member panel, we do not

believe that any of the three conditions cited by W.R.R. were met.13

IV.

For the foregoing reasons, we will deny the petition for review.

12 Compare Miah v. Ashcroft, 346 F.3d 434, 440 (3d Cir. 2003) with Toussaint v. Att’y Gen., 455 F.3d 409, 414 (3d Cir. 2006). 13 W.R.R. argues that there is a “need to review a decision by an immigration judge or DHS that is not in conformity with the law or with applicable precedents,” there is a “need to reverse the decision of an immigration judge,” and there is a “need to resolve a complex, novel, unusual, or recurring issue of law of fact.” P Brf. 47 (quoting 8 C.F.R. § 1003.1(e)(6)). 7