                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 12-1220
                                     ___________

                         CLAUDE NICHOLAS STEWART,

                                                           Petitioner.

                                           v.

             ATTORNEY GENERAL UNITED STATES OF AMERICA
                  ____________________________________

                      On Petition for Review of an Order of the
                           Board of Immigration Appeals
                            (Agency No. A035 769 321)
                    Immigration Judge: Honorable Walter Durling
                     ____________________________________

                      Submitted under Third Circuit LAR 34.1(a)
                                  October 3, 2012

              Before: SMITH, HARDIMAN and ROTH, Circuit Judges

                          (Opinion filed: October 12, 2012)
                                    ___________

                                    OPINION
                                    ___________

PER CURIAM

      Claude Nicholas Stewart petitions for review of a decision of the Board of

Immigration Appeals (“BIA”) dismissing his appeal of an Immigration Judge’s (“IJ”)
decision denying his applications for relief from removal. For the reasons that follow, we

will deny the petition for review.

       Stewart is forty-six years old and a native and citizen of Jamaica. He came to the

United States as a lawful permanent resident in 1976, when he was ten years old. In

2010, a notice to appear was issued charging that Stewart is subject to removal because

he had been convicted of an aggravated felony and a violation of law relating to a

controlled substance. The charges are based on various drug-related convictions in

Pennsylvania state court, including a drug trafficking conviction. Through counsel,

Stewart conceded he is removable as charged and applied for relief under the Convention

Against Torture (“CAT”). Stewart claims he will be harmed in Jamaica because he is

bisexual and has mental health problems. 1

       In support of his CAT application, Stewart testified that at the age of 15 he was hit

by a train and hospitalized for over a month. Stewart stated that after the accident he

became withdrawn and turned to drugs. He has an extensive drug arrest record. Stewart

was homeless from 2006 to 2009. He testified that people he associated with told him

men would pay him to have oral sex with him. Stewart stated he succumbed to this

because he was offered a place to stay and money. He testified that before he was

homeless he had “[s]trictly heterosexual relationships.” A.R. at 123.

       Stewart stated that he would now describe his sexual orientation as bisexual and

that he had told his girlfriend, his family, and other Jamaican immigration detainees that


1
 Stewart also applied for withholding of removal, but the IJ found him ineligible for this
form of relief. Stewart does not contest this ruling.
                                             2
he is bisexual. He testified that he has had more than 25 sexual encounters with men and

that he has had three or four long-term relationships. Stewart stated that he is concerned

for his safety if removed to Jamaica because he is bisexual. On cross-examination,

Stewart testified that he began having oral sex with men for money but he then began to

enjoy it. He stated that at the time of his arrest in 2010 he was living with a woman in an

exclusive relationship. He also stated that he told his family about his bisexuality after

his arrest.

       Dr. Jonathan Gransee, a psychologist, evaluated Stewart prior to his hearing and

submitted a report in support of his claim that he would be tortured in Jamaica due to his

mental health issues. In the report, Dr. Gransee diagnosed Stewart with, among other

things, cognitive disorder, adjustment disorder with depressed mood, and antisocial

behavior. Dr. Gransee testified that Stewart is intelligent and articulate, that he is not on

any medications, and that he has no history of psychological treatment. Dr. Gransee

explained that the adjustment disorder diagnosis is based on Stewart’s depression related

to his incarceration, that the diminished cognitive functioning diagnosis is based on his

memory problems, difficulty controlling his impulses, and short attention span, and that

the antisocial behavior diagnosis reflects his criminal history. Dr. Gransee also testified

that Stewart needs substance abuse treatment and therapy and that he might need testing

for brain injury resulting from the train accident.

       The IJ denied Stewart’s application for CAT relief. The IJ found Stewart’s

testimony that he is bisexual not credible. The IJ noted that there was no corroborating

evidence of his bisexuality, that Stewart’s testimony and written application are

                                              3
inconsistent as to when he had his first homosexual contact, and that, if Stewart

prostituted himself to other men, it was to earn money. The IJ also found Stewart’s

testimony about his long-term relationships with men lacking in detail. 2

       The IJ also rejected Stewart’s claim that he would be tortured in Jamaica on

account of his mental health problems. The IJ noted that Stewart does not have an acute

mental illness, agreed with Dr. Gransee that Stewart presents himself as intelligent and

articulate, and stated that Stewart is taking no medications and had never sought

counseling. The IJ stated that Stewart would not be viewed as mentally disabled based

on his cognitive and adjustment disorders and that his antisocial behavior diagnosis is

based on his criminal history. The IJ also noted that the background evidence Stewart

submitted reflects that the mentally ill in Jamaica are stigmatized, not tortured.

       The BIA dismissed Stewart’s appeal. The BIA upheld the IJ’s finding that Stewart

had not credibly established his bisexuality. The BIA noted the inconsistency between

his testimony and his written application as to whether he had any homosexual

encounters before 2006. The BIA also found that, when asked about his long-term

relationships with men, Stewart was non-responsive and he failed to provide any

information about such relationships. The BIA noted that Stewart only testified about his

relationship with his girlfriend, with whom he was living when he was arrested in 2010.

The BIA found that these discrepancies adequately support the adverse credibility finding


2
 The IJ also noted an inconsistency between Stewart’s testimony and application as to the
violence he saw in Jamaica against homosexuals and questioned his testimony that he had
told other Jamaican detainees that he is bisexual. As discussed below, the BIA did not
consider these aspects of the IJ’s decision.
                                              4
and that it was unnecessary to consider the other aspects of the IJ’s ruling in this regard.

       The BIA also upheld the IJ’s conclusion that Stewart had not established that he

would be tortured in Jamaica on account of mental illness. The BIA noted that Stewart’s

adjustment-related depression appeared to be related to his incarceration, his antisocial

behavior was based on his criminal activity, he had never sought psychological treatment,

and he is not taking medication. The BIA agreed with Stewart’s argument that he need

not have a debilitating mental illness to be perceived as mentally ill, but upheld the IJ’s

finding that Stewart did not show symptoms that would cause him to be viewed as

mentally ill. The BIA also upheld the IJ’s finding that the evidence did not show that the

government tortures, or acquiesces in the torture of, the mentally ill. This petition for

review followed.

       We have jurisdiction pursuant to 8 U.S.C. § 1252(a). Because the basis for

Stewart’s removal is a conviction for an aggravated felony, our jurisdiction is limited to

constitutional claims or questions of law. Pierre v. Att’y Gen., 528 F.3d 180, 184 (3d

Cir. 2008) (en banc) (citing 8 U.S.C. § 1252(a)(2)(C)-(D)). Our standard of review of

legal determinations is de novo, subject to the principles of deference articulated in

Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984). Id.

       In his brief, Stewart challenges the various bases relied upon by the BIA and IJ for

the adverse credibility determination as to his bisexuality, including the inconsistencies

between his testimony and written application for relief and the lack of detail regarding

his relationships with men. These arguments do not present a constitutional claim or

question of law. We lack jurisdiction to review factual determinations, id., which include

                                              5
adverse credibility findings. See Abdulrahman v. Ashcroft, 330 F.3d 587, 597 (3d Cir.

2003) (noting IJ’s findings of fact include adverse credibility determinations). Thus, we

will not consider these arguments.

       Stewart also asserts that his due process rights were violated based on the BIA’s

failure to recognize the IJ’s erroneous finding that his testimony and written application

are inconsistent as to the violence he saw in Jamaica against homosexuals. See Pet’r’s

Br. at 16-18. The BIA did not rely on this finding in upholding the adverse credibility

decision, but Stewart argues that the error required consideration because it was part of

the IJ’s rationale. Stewart also appears to contend that the BIA’s decision to uphold the

adverse credibility finding based on the other reasons stated by the IJ violated his due

process rights. See Pet’r’s Br. at 29.

       Stewart has not raised a colorable due process claim. He “has simply taken his

naked factual challenges and clothed them in the garb of due process.” Jarbough v. Att’y

Gen., 483 F.3d 184, 190 (3d Cir. 2007). He does not contend that he was denied notice, a

reasonable opportunity to be heard, or an individualized determination on his claim. See

id. As such, relief is not warranted.

       Stewart also argues that the IJ failed to adjudicate his claim that he will be tortured

in Jamaica on account of an imputed sexual identity. We agree with the Government that

Stewart only claimed in the proceeding before the IJ that he would be harmed because he

is bisexual. The Government also correctly notes that Stewart points to no evidence

supporting a claim that he will be perceived as bisexual. Because Stewart did not raise a

claim of imputed bisexuality, this argument lacks merit.

                                              6
       Stewart also challenges the denial of his claim that he will be tortured due to his

his mental disabilities. He contends that Dr. Gransee’s report and testimony reflect that

he has mental health disorders, that the BIA and IJ did not acknowledge evidence

showing discrimination against the mentally disabled in Jamaica, and that, in light of this

evidence, the BIA and IJ erred to the extent they required him to show he suffered from a

debilitating mental illness. We lack jurisdiction to consider these arguments, which

challenge the agency’s factual findings. We also note that the BIA agreed with Stewart

that he need not show that he had a debilitating mental illness to be perceived as mentally

ill.

       Finally, Stewart argues that the IJ, and the BIA in affirming the IJ, improperly

took judicial notice of the fact that his conduct and comments are inconsistent with

bisexuality and the fact that he does not suffer from mental illness. Stewart did not raise

this argument in his appeal to the BIA and it is not properly before us. Castro v. Att’y

Gen., 671 F.3d 356, 365 (3d Cir. 2012). Moreover, Stewart appears to have asserted in

his appeal below that the IJ did not take judicial notice of the meaning of bisexual or of

facts related to mental disorders. A.R. at 15, 20.

       Accordingly, we will deny the petition for review.




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