                                                      NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                               Nos. 18-1505 & 18-2291
                                    ____________

                          MOHAMMAD MUNIR ANWARI,
                                              Petitioner

                                           v.

                             ATTORNEY GENERAL
                      OF THE UNITED STATES OF AMERICA,
                                                  Respondent
                       __________________________________

                          On a Petition For Review of an Order
                          of the Board of Immigration Appeals
                              (Agency No. A028-133-415)
                         Immigration Judge: Walter A. Durling
                       __________________________________

                  Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                 November 6, 2018

       Before: GREENAWAY, JR., RESTREPO and FUENTES, Circuit Judges

                          (Opinion filed: November 6, 2018)
                                   ____________

                                     OPINION*
                                    ____________


PER CURIAM

      Mohammad Munir Anwari (“Anwari”) petitions for review of the Board of

Immigration Appeals’ order dated January 30, 2018 denying his application for deferral
of removal under the Convention Against Torture, and the Board’s order dated June 1,

2018 denying his motion to reopen removal proceedings. For the reasons that follow, we

will deny the petitions for review.

       Anwari, a native and citizen of Afghanistan, was admitted into the United States in

2006. On August 15, 2008, he was convicted in the United States District Court for the

Eastern District of Virginia of conspiracy to import and distribute 1 kilogram or more of

heroin, and conspiracy to possess with intent to distribute 1 kilogram or more of heroin.

He was sentenced to a term of imprisonment of 151-188 months. On or about September

27, 2016, Anwari was placed in removal proceedings by the Department of Homeland

Security, pursuant to Immigration & Nationality Act (“INA”) § 237(a)(2)(B)(i), as an

alien who had been convicted of a controlled substance offense after admission; INA §

237(a)(2)(A)(iii), as an alien who had been convicted of a drug trafficking aggravated

felony; and INA § 237(a)(2)(A)(iii), as an alien who had been convicted of conspiracy to

commit a drug trafficking aggravated felony. The charges were sustained, leaving

Anwari eligible to apply only for deferral of removal under the Convention Against

Torture, see 8 C.F.R. § 1208.17(a).

       On June 26, 2017, the Immigration Judge held a hearing on the merits of Anwari’s

deferral of removal claim. Anwari, who had legal representation, testified that, before he

came to the United States, he worked in a workshop repairing vehicles in Mazar-e-Sharif;

the workshop had a contract with the Afghan government. He testified that he had a

problem with certain anti-government groups, including Islamic Popular. That group

asked him to work for them and he refused. Anwari’s counsel asked him if he had had

                                             2
any problems with the Taliban in Afghanistan, and he replied that he had and that the

Taliban would harm him in the future because he had worked for the Afghan

government. Anwari testified that when he escaped from the city, the Taliban took all of

his possessions. He testified further that the Taliban was aware that he had relatives

living in the United States and that would cause the Taliban to consider him as an

American spy or sympathizer. He testified that, if he were to return to Afghanistan, he

possibly would be captured and killed. When asked whether he could expect the

government of Afghanistan to protect him, Anwari replied that he thought not because he

had never worked directly for the government, and, in any event, the Taliban controlled

life outside of the cities. In support of his application, Anwari submitted country

conditions evidence.

       On June 28, 2017, the IJ denied Anwari’s request for deferral of removal under the

CAT. Finding Anwari credible, the IJ nonetheless concluded that Anwari’s claim was

speculative; he had proferred no evidence of past torture and his testimony and written

application lacked details and specifics. On appeal to the Board of Immigration Appeals,

Anwari’s counsel argued that the IJ overlooked the information contained in Anwari’s

written application and ignored his corroborative evidence; that Anwari was denied a fair

hearing because DHS’s attorney did not ask him any questions; and that the IJ improperly

denied his request for a continuance.

       On January 30, 2018, the Board issued its final decision dismissing Anwari’s

appeal as meritless. The Board agreed with the IJ that Anwari failed to establish that it

was more likely than not that he would be tortured in Afghanistan, and concluded that,

                                             3
although the IJ did not specifically refer to Anwari’s corroborative evidence, he fully

considered Anwari’s claims. The Board held that there was no merit to Anwari’s

argument that he was denied due process, and that the IJ did not err in denying his request

for a continuance because he had ample time to prepare for the hearing. 1

       On March 26, 2018, Anwari filed a pro se motion to reopen his removal

proceedings with the Board. In his motion to reopen, Petitioner argued that his additional

evidence and changed country conditions in Afghanistan warranted reopening. In

support of his motion to reopen, Anwari offered his affidavit; a May 8, 2017 letter

purporting to be a warning to him from the Security Department, Kunduz Province, that

he has been sentenced to death and is under the surveillance of the Taliban; a May 8,

2017 written request from his wife in Afghanistan to the District Representative of

Kunduz, to state his views that Anwari is under surveillance by the Taliban and that he

has been sentenced to death; a May 9, 2017 letter from technicians vouching for

Anwari’s work and character; and the 2016 State Department Human Rights report for

Afghanistan.

       On June 1, 2018, the Board denied Anwari’s motion to reopen. The Board held

that Anwari failed to show that the additional evidence he sought to submit was new or

previously unavailable, or that it reflected materially changed conditions in Afghanistan.

The Board gave little weight to the handwritten letters submitted by Anwari, concluding


1
  Anwari has not pursued the denial of a continuance issue in his petition for review and
thus it is waived. See Laborers Int’l Union of North America, AFL-CIO v. Foster
Wheeler Corp., 26 F.3d 375, 398 (3d Cir. 1994) (“An issue is waived unless a party raises
it in [his] opening brief.”).
                                             4
that they were of “essentially unknown reliability.” Ultimately, the Board held that

Anwari failed a show a realistic chance that he could establish his eligibility for deferral

of removal sufficient to warrant reopening the removal proceedings, citing Matter of

Coelho, 20 I. & N. Dec. 464, 473 (BIA 1992).

       Anwari has petitioned for review of both Board decisions. We have jurisdiction

generally under 8 U.S.C. § 1252(a)(1), (b)(1), which provides for judicial review of final

orders of removal, as well as orders denying motions to reopen.

       We will dismiss the petitions for review to the extent that we lack jurisdiction and

deny them to the extent that Anwari raises reviewable claims. Preliminarily, we note that

Anwari is not eligible for asylum, 8 U.S.C. § 1158(b)(2)(A)(ii), or withholding of

removal, id. at § 1231(b)(3)(B)(ii) and 8 C.F.R. § 1208.16(d)(2) (CAT), because his

heroin trafficking conviction, for which he received a sentence of approximately 12½ to

15½ years’ imprisonment, constitutes a “particularly serious” crime. Matter of Y-L-, 23

I. & N. Dec. 270, 273 (Op. Att’y Gen. 2002) (explaining that aliens convicted of

aggravated felonies and sentenced to at least five years of imprisonment are automatically

deemed to have committed a particularly serious crime). See also 8 U.S.C. §

1231(b)(3)(B)(iv)(“[A]n alien who has been convicted of an aggravated felony (or

felonies) for which the alien has been sentenced to an aggregate term of imprisonment of

at least 5 years shall be considered to have committed a particularly serious crime.”).

Anwari’s asylum and withholding of removal arguments, see Petitioner’s Informal Brief,

at 8, 30-40, concern discretionary matters and his statutory ineligibility for these forms of

relief and thus we cannot consider them.

                                              5
       To qualify for deferral of removal under the CAT, an applicant must show that he

is “more likely than not” to be tortured. 8 C.F.R. § 1208.16(c)(2). “Torture is defined as

any act by which severe pain or suffering, whether physical or mental, is intentionally

inflicted on a person … when such pain or suffering is inflicted by or at the instigation of

or with the consent or acquiescence of a public official or other person acting in an

official capacity.” Id. at § 1208.18(a)(1). An applicant’s eligibility for deferral of

removal under the CAT is a factual determination that is ordinarily reviewed for

substantial evidence, but because Anwari is subject to removal based on aggravated

felony controlled substance convictions, our review is limited to colorable constitutional

claims and questions of law. 8 U.S.C. § 1252(a)(2)(C)-(D); Green v. Attorney General of

U.S., 694 F.3d 503, 506 (3d Cir. 2012).

       To the extent that Anwari challenges the agency’s factual determination that he

failed to prove a probability of future torture in Afghanistan, we lack jurisdiction to

review his claims. The IJ concluded that Anwari did not show, through his testimony and

written application, that anything bad would happen to him upon returning to

Afghanistan, in part because he had not shown that he had been persecuted in the past,

and the Board agreed. This determination is unreviewable. See Kaplun v. Attorney

General of U.S., 602 F.3d 260, 271 (3d Cir. 2010). In his brief, Anwari argues that the

agency erred in concluding that he was not credible, see Petitioner’s Informal Brief, at

16-19, but the IJ found Anwari to be credible. The problem identified by the IJ was not a

lack of credibility; rather, it was Anwari’s failure to refer to “specific facts sufficient to

demonstrate,” 8 U.S.C. § 1158 (b)(1)(B)(ii), eligibility for relief under the CAT. Anwari

                                               6
further contends that he “testified in detail about the torture he endured” at the hands of

the Taliban and the Afghan police, see Petitioner’s Informal Brief, at 22, but the record

does not support that contention. 2

       Anwari contends in his brief that the agency failed to apply the “more likely than

not” standard, see Petitioner’s Informal Brief, at 29-30, which is a reviewable legal issue,

but the agency explicitly applied that standard in deciding Anwari’s CAT claim. Anwari

also contends that the agency misconstrued the meaning of “acquiescence,” id. at 40-47,

but the agency did not base its determination of the issue of acquiescence and did not

require Anwari to establish that the Afghan government had actual knowledge of any

alleged torturous conduct, see generally Silva-Rengifo v. Attorney General of U.S., 473

F.3d 58, 69 (3d Cir. 2007) (CAT applicant need not show that government possesses

actual knowledge of torturous conduct; rather, he can establish governmental

acquiescence to torture by demonstrating that government is willfully blind to

perpetrator’s activities).

       Our jurisdiction to review the Board’s decision denying Anwari’s motion to

reopen also is limited to constitutional claims and questions of law. See Cruz v. Attorney

General of U.S., 452 F.3d 240, 246-47 (3d Cir. 2006). Anwari does not raise any

challenges in his pro se brief to the Board’s denial of his motion to reopen; for example,

he does not challenge the Board’s treatment of some of his evidence as unreliable. In his

2
  On the contrary, it was not until Anwari filed his motion to reopen with the Board that
he claimed to have been “tied up and beaten with sticks and rifle butts” by the Taliban in
2005 or 2006 and left with three broken ribs; and detained, interrogated, and beaten by
the Afghan police who wrongly suspected him of having participated in a terrorist
bombing attack in Kunduz. A.R. 17.
                                              7
motion to reopen, Anwari sought to offer additional evidence in support of his CAT

application, but the Board concluded that he failed to show that this evidence was

unavailable at the time of his 2017 merits hearing, as required by 8 C.F.R. §

1003.2(c)(1)(“A motion to reopen proceedings shall not be granted unless it appears to

the Board that evidence sought to be offered is material and was not available and could

not have been discovered or presented at the former hearing.”), and further concluded

that conditions in Afghanistan had not worsened in the nine months that elapsed between

Anwari’s removal hearing and when he filed his motion to reopen. 3 No constitutional or

legal errors are apparent in these determinations by the Board.

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




3
 The 2016 Country Report showed that the Taliban, insurgents, militants, and other
antigovernment elements continued to commit acts of violence against government
security forces, journalists, citizens, and others in Afghanistan, and that the government
of Afghanistan continues to implement measures to combat such violence.
                                             8
