                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-22-2009

Thomas v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3907




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                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 07-3907


                                DOUGLAS THOMAS

                                               Petitioner,

                                          v.

                ATTORNEY GENERAL OF THE UNITED STATES

                                               Respondent.




                        Petition for Review of a Final Order of
                         The Board of Immigration Appeals
                              (BIA File No. A26-582-649)


                     Submitted Under Third Circuit LAR 34.1(a)
                                 January 6, 2009

                BEFORE: FUENTES and FISHER, Circuit Judges, and
                        PADOVA, Senior District Judge.*

                               (Filed: January 22, 2009)


                             OPINION OF THE COURT




   *
     The Honorable John R. Padova, Senior United States District Judge for the Eastern
District of Pennsylvania, sitting by designation.
PADOVA, Senior District Judge.

       Petitioner, Douglas Thomas (“Thomas”), a citizen and native of Haiti who is

deportable pursuant to 8 U.S.C. § 1251(a)(2)(B)(i) because of a drug crime conviction, seeks

review of the decision of the Board of Immigration Appeals (“BIA”) dismissing his motion

to reopen removal proceedings pursuant to 8 C.F.R. § 1003.2(c)(3)(ii). For the following

reasons, the Petition will be denied.

                                             I.

       Because we write primarily for the parties, who are familiar with this case, we need

not reiterate the factual or procedural background of this appeal except insofar as may be

helpful to our discussion.

       In a May 2001 hearing before the immigration judge (“IJ”) on an application for

deferral of removal under the U.N. Convention Against Torture (“CAT”), Thomas claimed

that he more likely than not would be tortured if repatriated to Haiti. In granting Thomas’

application for deferral of removal, the IJ found that testimony Thomas provided the

Government to support the prosecution of several Haitian drug dealers in the United States

would put him at unique risk of harm—rising to the level of torture—if repatriated to Haiti.

The IJ also found persuasive Thomas’ documentary evidence showing the deplorable

conditions in Haitian prisons. In November 2003, the BIA reversed the IJ’s decision and

ordered that Thomas be deported. The BIA rejected Thomas’ testimony that he would be

individually targeted by those connected to the drug dealers against whom he had testified



                                             2
and determined that prison conditions in Haiti did not alone establish the requisite probability

of torture. The BIA relied upon Matter of J-E-, 23 I. & N. Dec. 291 (BIA 2002), to support

its determination.

       In December 2006, we denied Thomas’ first petition for review, finding that the BIA

had applied the proper specific intent requirement to Thomas’ CAT claim. See Thomas v.

Att’y Gen., 210 F. App’x. 195, 202 (3d Cir. 2006). We also denied Thomas’ request for

remand for additional factfinding because we determined we lacked jurisdiction to do so

under 8 U.S.C. § 1252(a)(1) and § 1252(b)(a)(4)(A). Id. at 203. We did suggest, however,

that Thomas could move to reopen removal proceedings on the basis of changed country

conditions, pursuant to 8 C.F.R. § 1003.2(c)(3)(ii), despite the fact that he sought deferral of

removal, rather than withholding of removal. Id. (citing 8 C.F.R. § 208.17(a)).

                                              II.

       In March 2007, Thomas filed a motion to reopen based on both a change in the legal

standard applied to CAT claims and changed conditions in Haiti. The BIA denied the motion

on August 31, 2007. At the outset of its analysis, the BIA stated it would “first consider

whether the respondent ha[d] established changed circumstances in Haiti that warrant

reopening.” 1 App. at 2. The BIA then rejected Thomas’ claim that “there ha[d] been a

change in the analysis of claims for protection under the Convention Against Torture.” Id.



   1
    The BIA proceeded with Thomas’ claims “without determining whether the exception
to the time limits on motions to reopen codified at 8 C.F.R. § 1003.2(c)(3)(ii) extends to
applications for protection under the Convention Against Torture . . . .” App. at 2.

                                               3
(citing Lavira v. Att’y Gen., 478 F.3d 158, 168 (3d Cir. 2007) (emphasis added), overruled

by Pierre v. Att’y Gen., 528 F.3d 180 (3d Cir. 2008) (en banc)). The BIA also disagreed that

“the proffered evidence establishe[d] that conditions ha[d] deteriorated since March 22,

2002, when [the BIA] issued [its] decision in Matter of J-E-,” despite finding that Thomas’

motion was “supported by extensive evidence regarding country conditions in Haiti.” Id. at

3. Rather, the BIA found Thomas’ documents “[did] not show that conditions in Haiti ha[d]

worsened since the time of the respondent’s removal hearing.” Id. Moreover, the BIA found

that, at the time of Thomas’ May 2001 removal hearing, the IJ “was on notice . . . of these

conditions in Haiti based on other evidence of record.” Id. The BIA ultimately denied

Thomas’ motion and concluded that he “ha[d] failed to show a reasonable likelihood that he

can establish that he [would] more likely than not . . . be tortured.” Id. This appeal followed.

                                              III.

         The BIA has jurisdiction over a motion to reopen pursuant to 8 C.F.R. § 1003.1(b) and

§ 1003.2(c). We have jurisdiction to review final orders of removal pursuant to § 242 of the

Immigration and Naturalization Act (“INA”), codified at 8 U.S.C. § 1252(a) and as amended

by the REAL ID Act of 2005, Pub. L. No. 109-13, Div. B., 119 Stat. 231 (2005) (“REAL ID

Act”).

         Because Thomas was convicted in 1991 of conspiracy to possess cocaine with intent

to distribute, an aggravated felony, he is deportable under the INA. See generally 8 U.S.C.

§ 1227(a)(2)(A)(iii), 1227(a)(2)(B)(i); id. § 1101(a)(43)(B). We generally lack jurisdiction



                                               4
“to review any final order of removal against an alien who is removable by reason of having

committed a criminal offense covered in” 8 U.S.C. § 1227(a)(2)(A)(iii) or § 1227(a)(2)(B).

8 U.S.C. § 1252(a)(2)(C).

       Notwithstanding the jurisdiction-stripping provision of § 1252(a)(2)(C), we retain

jurisdiction under § 106 of the REAL ID Act to review “constitutional claims or questions

of law raised upon a petition for review . . . .” 8 U.S.C. § 1252(a)(2)(D). Because our

jurisdiction under § 1252(a)(2) remains strictly limited to “constitutional claims or questions

of law,” however, we lack jurisdiction to review any factual or discretionary determinations

made by the BIA. See Alaka v. Att’y Gen., 456 F.3d 88, 102 (3d Cir. 2006) (“‘[D]espite the

changes of the REAL ID Act, factual or discretionary determinations continue to fall outside

[our] jurisdiction.’” (quoting Sukwanputra v. Gonzales, 434 F.3d 627, 634 (3d Cir. 2006))).

       Our review under 8 U.S.C. § 1252(a)(2) is extremely narrow in scope. We review the

BIA’s denial of a motion to reopen for abuse of discretion, and will disturb it “only if it was

arbitrary, irrational, or contrary to law.” Rranci v. Att’y Gen., 540 F.3d 165, 171 (3d Cir.

2008) (quoting Filja v. Gonzales, 447 F.3d 241, 251 (3d Cir. 2006)). In applying that

standard, “[w]e review the BIA’s legal conclusions de novo, but will afford Chevron

deference to the BIA’s reasonable interpretations of the statutes which it is charged with

administering.” Kamara v. Att’y Gen., 420 F.3d 202, 211 (3d Cir. 2005) (citations omitted).

       Unlike with petitions for review brought under 8 U.S.C. § 1252(a)(1), however, we

do not examine for substantial evidence factual determinations on petitions brought pursuant



                                              5
to § 1252(a)(2).    See Pierre, 528 F.3d at 184 (“Under the REAL ID Act, factual or

discretionary determinations are outside of our scope of review.” (citation omitted));

Sukwanputra, 434 F.3d at 634 (same). Nevertheless, because the REAL ID Act gives us

jurisdiction to consider “questions of law,” our review encompasses the “application of law

to undisputed facts or adjudicated facts, raised in the initial petition for . . . relief.” Mudric

v. Att’y Gen., 469 F.3d 94, 97 (3d Cir. 2006) (emphasis added) (citing Kamara, 420 F.3d at

211); see also Francois v. Gonzales, 448 F.3d 645, 648 (3d Cir. 2006). Cf. Bakhtriger v.

Elwood, 360 F.3d 414, 425 (3d Cir. 2004) (“[A]lthough review as a matter of law

encompasses deciding whether legal principles have been properly applied to undisputed

facts, it does not encompass deciding the factual issues themselves.” (internal citations

omitted)).

                                               IV.

       Thomas argues that the BIA abused its discretion in two ways when it denied his

motion to reopen: first, it applied the wrong “specific intent” standard to claims for

protection under the CAT; second, it improperly found he failed to make out a prima facie

case that he was eligible for CAT protection. The Government concedes that the former is

a question of law which we have jurisdiction to review. However, the Government argues

that we lack jurisdiction over the latter question because “whether the documentary evidence

Thomas proffered establishes prima facie eligibility . . . is purely a factual determination . .

. requir[ing] weighing and evaluation of the evidence . . . [which is] reviewed under the



                                                6
substantial evidence standard.” See Saintha v. Mukasey, 516 F.3d 243, 249 (4th Cir. 2008)

(“[W]e conclude that BIA determinations that we would ordinarily review under the

substantial evidence standard are necessarily factual in nature, and therefore beyond our

jurisdiction to review when the petitioner has been convicted of an aggravated felony.”);

Conteh v. Gonzales, 461 F.3d 45, 63 (1st Cir. 2006) (“This proscription extends to review

of the BIA’s factual findings as to credibility, evidentiary weight, and satisfaction of a

correctly framed burden of proof.”); cf. Hamid v. Gonzales, 417 F.3d 642, 647 (7th Cir.

2005) (finding no jurisdiction to review “whether the IJ correctly considered, interpreted, and

weighed the evidence presented—that is to say, whether the IJ’s conclusion was based on

substantial evidence”). Thomas contends that we do have jurisdiction over the latter claim

because he seeks review of the BIA’s legal determination, i.e., prima facie eligibility for

protection under the CAT. Thomas alleges that this determination was improper because the

BIA misapplied the legal standard governing motions to reopen.

       We have jurisdiction over both of Thomas’ claims. Whether the BIA applied the

proper “specific intent” standard plainly is a question of law. Moreover, whether an alien

is prima facie eligible for CAT relief is a legal determination because it involves the

application of a legal principal to a set of facts. See Sevoian v. Ashcroft, 290 F.3d 166, 174-

75 (3d Cir. 2002) (“An applicant for relief on the merits under the Convention Against

Torture bears the burden of establishing ‘that it is more likely than not that he or she would

be tortured if removed to the proposed country of removal.’ . . .     [T]he prima facie case



                                              7
standard . . . requires the applicant to produce objective evidence showing a ‘reasonable

likelihood’ that he can establish that he is more likely than not to be tortured.” (citations

omitted)); see also Ragen Corp. v. Kearney & Trecker Corp., 912 F.2d 619, 625-26 (3d Cir.

1990).

                                               V.

         Turning to Thomas’ first argument, we note that an intervening change in the law

controlling CAT claims does not, under the regulations, excuse an otherwise time- or

number-barred motion to reopen. See 8 C.F.R. § 1003.2(c)(3). Thus, the BIA’s decision not

to grant Thomas’ motion on the basis of any alleged change in law falls squarely within its

discretionary authority to reopen sua sponte, which we lack jurisdiction to review. See Calle-

Vujiles v. Ashcroft, 320 F.3d 472, 474-75 (3d Cir. 2003).2

         With respect to Thomas’ second argument, we noted in Sevoian that there are three

grounds on which the BIA may deny a motion to reopen immigration proceedings.

               First, it may hold that the movant has failed to establish a prima
               facie case for the relief sought. . . . Second, it may hold that the
               movant has failed to introduce previously unavailable, material
               evidence that justifies reopening. . . . Third, in cases in which
               the ultimate grant of relief being sought is discretionary (asylum



   2
    We also note that, whatever the merits of Thomas’ change-in-the-law argument before
we rendered our decision in Pierre, we find any alleged error to be harmless. Thomas
effectively concedes, as he must, that the specific intent standard we sanctioned in Pierre now
controls his case. Thus, no matter whether the BIA applied the wrong standard in 2007 to
Thomas’ CAT claim, the standard it indisputably did apply is the standard presently
governing CAT claims. See Pierre, 528 F.3d at 190-91 (applying Matter of J-E- to a CAT
claim brought by an alien who was to be repatriated to Haiti).

                                                8
              . . . but not withholding of deportation), the Board can leap
              ahead over the two threshold concerns (prima facie case and
              new evidence/reasonable explanation) and simply determine that
              even if they were met, the movant would not be entitled to the
              discretionary grant of relief.

Guo v. Ashcroft, 386 F.3d 556, 564 n.8 (3d Cir. 2004) (quoting Sevoian, 290 F.3d at 169-

70). Thomas argues that the BIA abused its discretion by improperly denying his motion on

the first of these grounds. We find, however, that the BIA actually denied Thomas’ motion

to reopen based upon the second Sevoian ground.

       The instant motion to reopen is Thomas’ second, brought nearly four years after the

BIA’s final determination of the merits of his CAT claim. Thus, it is generally both time-

and number-barred under the regulations. See 8 C.F.R. § 1003.2(c)(2) (“Except as provided

in paragraph (c)(3) of this section, a party may file only one motion to reopen deportation or

exclusion proceedings . . . and that motion must be filed no later than 90 days after the date

on which the final administrative decision was rendered in the proceeding sought to be

reopened . . . .”). The regulations, however, provide that the time and numerical limitations

that typically apply to motions to reopen may be waived if the motions are “based on changed

circumstances arising in the country of nationality or in the country to which deportation has

been ordered, if such evidence is material and was not available and could not have been

discovered or presented at the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii).

       Thus, with an otherwise time- and number-barred motion to reopen brought pursuant

to § 1003.2(c)(3)(ii), the BIA first considers whether the petitioner has proved, by material



                                              9
evidence not otherwise available at the time of the previous hearing, that circumstances in

the country of deportation have sufficiently changed to warrant reopening. See, e.g., Shardar

v. Att’y Gen., 503 F.3d. 308, 314-15 (3d Cir. 2007) (examining the record in a §

1003.2(c)(3)(ii) case for evidence of changed circumstances, and not the likelihood of

torture); see also Filja, 447 F.3d at 255-56. This determination does not consider whether

the petitioner would be entitled to substantive relief. Prima facie eligibility for substantive

relief, therefore, is insufficient when an otherwise untimely motion fails to establish a change

in country circumstances. See 8 C.F.R. § 1003.2(a) (“The Board has discretion to deny a

motion to reopen even if the party moving has made out a prima facie case for relief.”). In

effect, the “changed circumstances” criteria is a procedural hurdle that must be overcome

before an untimely motion to reopen may be considered. See Shardar, 503 F.3d at 314.

       In its decision, the BIA properly determined whether Thomas had “established

changed circumstances in Haiti that warrant reopening.”           App. at 2.    In making its

determination, the BIA found that documents submitted by Thomas did “not show that

conditions in Haiti ha[d] worsened since the time of [his] removal hearing [in 2003].” Id.

at 3. The BIA also found that recent Department of State reports “show[ed] no worsening

in torture in Haitian prisons and a decrease in torture generally,” and that non-governmental

organizations like the Red Cross “monitored prison conditions and offer assistance to

prisoners.” Id. Thus, the BIA found as a matter of fact that there had not been a change (i.e.,

a worsening) in circumstances in Haiti to warrant reopening Thomas’ case.



                                              10
       We find, therefore, that the BIA properly denied Thomas’ motion to reopen as

untimely. Absent a showing of changed circumstances in Haiti, the BIA need not have

considered the merits of Thomas’ CAT claim because his motion was both time- and

number-barred under the regulations. For the reasons set forth above, we will affirm the

decision of the BIA and deny Thomas’ Petition.3




   3
     Because we find the BIA properly denied Thomas’ motion as untimely, we need not
address whether the BIA abused its discretion in finding Thomas failed to establish prima
facie eligibility for relief under the CAT.

                                           11
