IMG-135                                                       NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                     No. 10-2437
                                    _____________

                           REGINALD MATHEIW CASTEL,
                                             Petitioner

                                           v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                              Respondent
                    ____________________________________

                       On Petition for Review of an Order of the
                            Board of Immigration Appeals
                             (Agency No. A029 630 580)
                         Immigration Judge Walter A. Durling
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    May 11, 2011

              Before: SCIRICA, FISHER and ALDISERT, Circuit Judges.

                                 (Filed: May 12, 2011 )
                                      ___________

                                      OPINION
                                     ___________

PER CURIAM

       Reginald Castel petitions for review of an order of the Board of Immigration

Appeals (“BIA”) which denied his motion to reopen his removal proceedings. We will

deny the petition for review.
                                             I.

       Castel is a citizen of Haiti. As a child, he was admitted to the United States in

1982 and adjusted his status to that of a Lawful Permanent Resident in 1989. In 1999,

Castel pleaded guilty in New York state court to first degree assault, for which he was

sentenced to eight years in prison. In August 2005, the government charged Castel with

being removable for having been convicted of an aggravated felony. He sought deferral

of removal to Haiti under the Convention Against Torture (“CAT”). Castel claimed that

he would be detained in prison upon removal to Haiti as a criminal deportee, that he

suffers from acute diabetes requiring twice-daily insulin injections to prevent life-

threatening medical conditions, and, in light of the abysmal prison conditions in Haiti and

his lack of family ties to assist him with obtaining his medication, he would suffer greatly

while in prison. The Immigration Judge (“IJ”) granted relief, finding that Castel met his

burden to establish that he would more likely than not suffer intentional severe pain or

suffering and would likely die if removed. The BIA sustained the Government’s appeal,

vacated the IJ’s order granting deferral of removal, and ordered Castel removed to Haiti.

The BIA noted that the IJ cited to evidence received in another case and to non-

precedential BIA decisions, and stated that the possibility of suffering under poor prison

conditions did not substantiate a finding that the Haitian government acquiesces in torture

of criminal deportees in detention. The BIA also cited to this Court’s decision in Auguste

v. Ridge, 395 F.3d 123 (3d Cir. 2005), in concluding generally that Castel did not present

any evidence that he will more likely than not be subject to torture. This Court denied

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Castel’s petition for review. See Castel v. Att’y Gen., C.A. No. 06-3868 (decision

entered Oct. 7, 2008). This Court denied Castel’s motions to remand and for panel

rehearing, and the United States Supreme Court denied his petition for writ of certiorari

on October 13, 2009.

       On October 28, 2009, Castel filed a motion to reopen with the BIA, arguing that

exceptional circumstances warranted reopening. He included documentation in response

to his Freedom of Information Act request about Haiti’s detention of criminal deportees,

a new declaration from the executive of a nonprofit that aids criminal deportees in Haiti,

updated medical records, and other evidence that had previously been submitted. He also

argued that a change in the law warranted reopening, citing this Court’s decision in Pierre

v. Attorney General, 528 F.3d 180 (3d Cir. 2008) (en banc), which this Court had cited in

denying his earlier petition. Castel argued that Pierre increased the burden for an alien

applying for CAT relief, and that because he had not had the opportunity to try to meet

that new burden, it would violate his due process rights if the BIA did not reopen. The

BIA denied the motion, agreeing with the Government that Castel had not submitted any

new or material evidence that would warrant a remand, and found that Castel could not

distinguish his case from others where courts found that aliens with medical conditions

had not shown they were eligible for CAT relief. The BIA also declined to reopen sua

sponte on the basis of the change in case law, noting that it did not appear that a remand

would change the result in Castel’s case. Castel filed a timely, counseled petition for

review.

                                             3
                                                II.

      Because Castel was convicted of an aggravated felony, this Court’s jurisdiction is

limited to review of constitutional claims and questions of law. Papageorgiou v.

Gonzales, 413 F.3d 356, 358 (3d Cir. 2005); 8 U.S.C. § 1252(a)(2)(D). The BIA here

denied Castel’s motion to reopen because he failed to produce “new or material evidence

which would warrant a remand of his record.” A.R. 4. These determinations are

questions of fact that we lack jurisdiction to consider. Viracacha v. Mukasey, 518

F.3d511, 515 (7th Cir. 2008). Likewise, to the extent the BIA reached the issue of

whether country conditions had changed in Haiti, such is a factual determination we are

barred from reviewing pursuant to 8 U.S.C. § 1252 (a)(2)(C). Cf. Jarbough v. Att’y Gen.,

483 F.3d 184, 189 (3d Cir. 2007) (BIA’s determination that petitioners had not

demonstrated extraordinary or changed circumstances to meet exception to asylum

timeliness requirements was not a question of law within meaning of § 1252(a)(2)(D)).

      Although Castel’s motion to reopen was untimely, and although the BIA

determined that Castel failed to produce new and material evidence to circumvent the

timeliness requirements, the BIA retained the discretion to reopen Castel’s proceedings

“sua sponte.” 8 C.F.R. § 1003.2(a). “[W]e lack jurisdiction to review a decision on

whether and how [the BIA] exercise[d] that discretion.” Pllumi v. Att’y Gen., No. 09-

4454, --- F.3d ---, 2011 WL 1278741, *2 (3d Cir. April 6, 2011). However, “we may

exercise jurisdiction to the limited extent of recognizing when the BIA has relied on an

incorrect legal premise.” Id. at *3. Here, the BIA decided not to reopen sua sponte based

                                            4
on two factors: (1) the “intervening case law” did not “represent an exceptional situation,

especially since [Castel’s] evidence does not indicate that a remand would change the

result of his case”; and (2) there was “no evidence that the respondent’s proceedings were

fundamentally unfair.” A.R. 5. Turning to the first factor, one could read Castel’s brief

as arguing, in essence, that the BIA did not understand that Pierre fundamentally changed

the law and that, based on that misunderstanding of the law, it therefore failed to

recognize that exceptional circumstances warranted sua sponte reopening. We have

jurisdiction to consider this argument, but, for the following reasons, we disagree with

Castel’s conclusions.

       In Auguste, this Court denied relief to a Haitian alien who claimed that his

indefinite detention in a Haitian prison with deplorable conditions would constitute

torture. 395 F.3d at 153-55. We held that the alien in that case had not established that

Haitian authorities had a specific intent to torture detainees. Id. We did not adopt “a per

se rule that brutal and deplorable prison conditions can never constitute torture,” but held

open the possibility that a claim could succeed if there was evidence that authorities were

placing an individual in brutal prison conditions with the intent to inflict severe pain and

suffering on that individual. Id. at 154. Pierre did not overrule Auguste; in fact, it

reinforced the proposition that the CAT requires a petitioner to establish specific intent;

i.e., that his torturer has the motive or purpose of causing him pain or suffering. Pierre,

528 F.3d at 189, citing Auguste, 395 F.3d at 145-46. Thus, Pierre did not “establish” the

specific intent standard. Rather, Pierre overruled Lavira v. Attorney General, 478 F.3d

                                              5
158, 171 (3d Cir. 2007), to the extent that it held that specific intent could be based on

deliberate ignorance or willful blindness, and clarified that “[m]ere knowledge that a

result is substantially certain to follow from one’s actions is not sufficient to form the

specific intent to torture.” Id.

       The hearings in Castel’s immigration proceedings and the BIA’s initial decision in

his case both occurred after we decided Auguste (decided Jan. 20, 2005) and before

Lavira, (Feb. 26, 2007). Thus, Castel was on notice throughout his proceedings that in

order to succeed he was required to show that Haitian authorities would act with specific

intent in torturing him. We disagree with Castel that Pierre fundamentally changed the

law that was to be applied in his proceedings, and we therefore do not find that the BIA’s

decision to deny reopening was based on a legal error.

       Castel’s arguments regarding the fairness of his immigration proceedings appear

to be “naked factual challenges . . . clothed . . . in the garb of due process,” rather than a

true constitutional argument. See Jarbough, 483 F.3d at 190. We lack jurisdiction to

consider this argument. Castel also argues that his removal will be unfair unless this

Court takes notice of the conditions in Haiti following the January 2010 earthquake.

However, as Castel acknowledges, this Court’s review is limited to the administrative

record as it stands. 8 U.S.C. § 1252(b)(4)(A).

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




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