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                                                         [DO NOT PUBLISH]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:
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      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.
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      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.
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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).
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      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.
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                                               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 . . . .”).
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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.


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