                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                 Nos. 17-2420 & 17-3508
                                   ________________

                         STEVE DEVIN GREGOR BALBOSA,
                                a/k/a Steve Brown,
                                             Petitioner

                                             v.

              ATTORNEY GENERAL UNITED STATES OF AMERICA,
                                      Respondent
                           ________________

                        On Petition for Review of a Final Order
                         of the Board of Immigration Appeals
                     Immigration Judge: Honorable Mirlande Tadal
                               (BIA No. A044-250-567)
                                  ________________

                       Submitted Under Third Circuit LAR 34.1(a)
                                    June 11, 2018

             Before: AMBRO, JORDAN, and HARDIMAN, Circuit Judges

                              (Opinion filed: June 15, 2018)
                                  ________________

                                       OPINION*
                                   ________________


AMBRO, Circuit Judge




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Petitioner Steve Devin Gregor Balbosa, a native and citizen of Trinidad and

Tobago, petitions for review of the Board of Immigration Appeals’ dismissal of his

appeal of the Immigration Judge’s decision to deny his request for protection under the

Convention Against Torture. He also petitions us to review the Board’s denial of his

motion to reopen its adverse decision.

       The Board had jurisdiction to review the Immigration Judge’s decision under 8

C.F.R. §§ 1003.1(b)(3) and 1240.15, and we have jurisdiction to review the Board’s final

order of removal under 8 U.S.C. § 1252(a). “We exercise de novo review over

constitutional claims or questions of law and the application of law to facts.” Garcia v.

Att’y Gen., 665 F.3d 496, 502 (3d Cir. 2011) (citation omitted). We review the

Immigration Judge’s findings only to the extent they were incorporated into the Board’s

decision. Id.; Orabi v. Att’y Gen., 738 F.3d 535, 539 (3d Cir. 2014).

       Balbosa argued to the Board that he was likely to face torture—with the consent,

acquiescence, or willful blindness of the Government—if he returned to Trinidad and

Tobago. The Board denied Balbosa’s appeal because it found his subjective fear of return

to a country with a high crime rate and where he has few contacts does not establish a

likelihood he would face torture if removed there. It also found Balbosa’s evidence that

the Government of Trinidad and Tobago is seeking to prevent rising crime in part by

focusing on deportees with criminal records does not establish that a public official or

other individual acting in an official capacity would acquiesce to torture against him. For

these two reasons, it agreed with the Immigration Judge’s determination that Balbosa has

not established he qualifies for protection under the Convention.

                                             2
       The Board did not make any findings concerning whether Balbosa’s criminal

conviction was for a particularly serious crime, which would have barred him from

asylum relief. Only the Immigration Judge made this determination, and it was not

incorporated into the Board’s decision. Hence Balbosa’s argument to us that the

Immigration Judge erred is beyond the scope of our review. Further, the Board did not err

(or violate Balbosa’s Fifth Amendment right to procedural due process) by considering

the issue waived: Balbosa did not appeal this part of the Immigration Judge’s decision to

the Board, and thus he did not take advantage of the process available to him.

       Balbosa also argues the Board applied the wrong legal standard to find there was

no evidence the Government would acquiesce to torture, as “acquiescence” includes

failure to protect those targeted from the torture. See Pieschacon-Villegas v. Att’y Gen.,

671 F.3d 303, 311 (3d Cir. 2011). But again, Balbosa did not make this argument to the

Board, nor has he shown us evidence that supports his allegation that the Government

fails to protect deportees targeted by gangs. Balbosa presents no other arguments for

reversal of the Board’s decision, and thus we deny his petition for review.1

Next we turn to Balbosa’s challenge to the Board’s denial of his motion to reopen its

adverse decision, which we review for abuse of discretion. Liu v. Att’y Gen., 555 F.3d

145, 148 (3d Cir. 2009). The Board had jurisdiction to reopen proceedings under

8 C.F.R. § 1003.2(a), and we have jurisdiction, as above, under 8 U.S.C. § 1252(a).



1
  Though we reach no holding on the Government’s argument that we lack jurisdiction
because Balbosa brings only unexhausted claims, we agree that Balbosa’s claims are
either unexhausted or lack sufficient merit.

                                             3
       Balbosa moved to reopen the Board’s adverse decision on the ground he received

ineffective assistance of counsel who failed to contest his status as an aggravated felon

and that his conviction was for a particularly serious crime. The Board denied his motion

because, even assuming counsel was ineffective, Balbosa did not show he suffered

prejudice as a result of the attorney’s handling of his case. Fadiga v. Att’y Gen., 488 F.3d

142, 157, 159–60 (3d Cir. 2007). The standard it applied required Balbosa to show there

is a “reasonable likelihood” that the result of the removal proceedings would have been

different had the errors not occurred. Id. at 159. This requires him to show “not just that

he received ineffective assistance in his removal proceedings, but that the challenged

order of removal is fundamentally unfair, because there is a significant likelihood that the

[Immigration Judge] would not have entered an order of removal absent counsel’s

errors.” Id. Applying this standard to Balbosa, the Board held he presented no argument

that he is not removable as charged nor that the Immigration Judge erred in ordering him

removed under Immigration and Naturalization Act §§ 237(a)(2)(A)(iii) and (a)(2)(B)(i).

Hence it held he did not demonstrate a reasonable likelihood that the attorney’s alleged

ineffective assistance affected either his removability or eligibility for relief.

       Balbosa argues the Board incorrectly interpreted Fadiga’s “reasonable likelihood”

standard; it applied too rigorous a standard, and he only needed to show prima facie

eligibility and a “realistic chance” that he might be able to obtain his requested relief.

Even if the Fadiga standard required only prima facie eligibility, Balbosa does not argue

he made a showing to the Board that his conviction was not for an aggravated felony or a



                                               4
particularly serious crime, nor does he make this showing to us. Accordingly, we cannot

say the Board abused its discretion by denying Balbosa’s motion to reopen.

       Thus we deny Balbosa’s petition for review of the Board’s dismissal of his appeal

and its denial of his motion to reopen.




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