Hill v. Attorney General of the United States ( 2013 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 13-1912
___________
ANDRE LE-VAR HILL,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A039-751-543)
Immigration Judge: Honorable Andrew Arthur
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 2, 2013
Before: SMITH, CHAGARES and SHWARTZ, Circuit Judges
(Opinion filed: October 4, 2013)
___________
OPINION
___________
PER CURIAM
Andre Le-Var Hill (“Hill”) petitions for review of the Board of Immigration Appeals’
(“BIA” or “Board) dismissal of his appeal. For the following reasons, we will deny the
petition for review.
1
I.
Hill, a citizen of Jamaica, entered the United States as a lawful permanent resident in
1985. In 1999, he was convicted of possession of marijuana in the fourth degree in New York,
in violation of N.Y. Penal Law. § 221.15, and sentenced to probation. In 2011, he was
convicted in the Southern District of New York of being a fugitive in possession of a firearm
and ammunition in violation of 18 U.S.C. § 922(g)(2), and sentenced to 18 months’
imprisonment. Subsequently, he was served with a Notice to Appear charging him with being
removable under 8 U.S.C. § 1227(a)(2)(A)(iii) on the basis of an aggravated felony firearms
offense as defined by 8 U.S.C. § 1101(a)(43)(E)(ii); under 8 U.S.C. § 1227(a)(2)(B)(i) for a
controlled substances violation; and under 8 U.S.C. § 1227(a)(2)(C) for a firearms violation.
At a hearing before the Immigration Judge (“IJ”), Hill admitted the factual allegations
but testified that if he were removed to Jamaica, he would be subject to persecution and torture
by the government because of his family’s association with the Jamaican Labor Party (“JLP”),
the opposition party to the ruling People’s National Party (“PNP”). The IJ concluded that
Hill’s federal firearms conviction rendered him ineligible for withholding of removal because
it was a “particularly serious crime.”1 See 8 U.S.C. § 1231(b)(3)(B)(iv). Alternatively, he
concluded that Hill’s application failed on the merits. The IJ also denied Hill’s application for
deferral of removal under the Convention Against Torture (“CAT”), noting that the evidence
did not support Hill’s claim that he would likely face torture based upon his political
affiliation.
1
Hill did not file an application for asylum.
2
On appeal to the BIA, Hill did not challenge the IJ’s removability findings and his
determination that Hill’s federal firearms conviction barred him from withholding of removal.
The BIA found no error in the IJ’s determinations that Hill had not demonstrated eligibility for
withholding of removal and that he was not likely to face torture in Jamaica. In his appeal, Hill
asserted that his due process rights were violated when his hearing was rescheduled without
adequate notice because he was unable to have family members present to testify as to the
hardship consequences of his removal. However, the BIA determined that he had not shown
the necessary prejudice because he was ineligible for discretionary relief, did not submit any
additional evidence on appeal that he was unable to present to the IJ, and had not indicated
before the IJ that he was not prepared to proceed. This petition for review followed.
II.
Generally, we lack jurisdiction to review a final order of removal against an alien, like
Hill, who is removable for having been convicted of an aggravated felony.2 8 U.S.C. §
1252(a)(2)(C). We retain jurisdiction, however, to review any constitutional or legal questions
raised in his petition for review. See 8 U.S.C. § 1252(a)(2)(D); Cruz v. Att’y Gen., 452 F.3d
240, 246-47 (3d Cir. 2006).
III.
As an initial matter, Hill has not challenged the IJ’s determination that his aggravated
felony conviction rendered him ineligible for withholding of removal. As a result, this issue is
2
The agency correctly concluded that Hill was an aggravated felon based upon his conviction
under 18 U.S.C. § 922(g)(2). See 8 U.S.C. § 1101(a)(43)(E)(ii).
3
waived.3 See Bradley v. Att’y Gen., 603 F.3d 235, 243 n.8 (3d Cir. 2010) (arguments not
raised in opening brief are waived).
Hill does challenge the BIA’s denial of relief under the CAT. We may review only
legal questions regarding Hill’s eligibility, however; factual questions are outside the scope of
our reviewing authority. See Pierre v. Att’y Gen., 528 F.3d 180, 184 (3d Cir. 2008) (en banc).
Hill appears to allege that the BIA failed to consider relevant evidence concerning whether he
established eligibility for deferral of removal under the CAT. We may review this claim. See
Green v. Att’y Gen., 694 F.3d 503, 508 (3d Cir. 2012). (addressing the merits of criminal
alien’s claim that “the IJ and BIA committed legal error by ignoring relevant evidence in the
record”). But Hill has failed to specify any specific evidence that was overlooked, and we
discern no error on our own.
Hill also appears to challenge the weight the agency gave to his evidence when
evaluating his eligibility for CAT relief. See id. (recognizing that petitioner’s “real argument is
not that relevant evidence was ignored, but rather that the IJ incorrectly weighed evidence in
making factual determinations”). However, as we have just indicated, we lack jurisdiction
3
In any event, we would lack jurisdiction over such a claim. For one thing, Hill did not argue
to the BIA that the IJ erred in determining that he was ineligible for withholding of removal
because his firearms conviction was “particularly serious.” Nor did the BIA consider the
question on its own. See Lin v. Att’y Gen., 543 F.3d 114, 123-24 (3d Cir. 2008) (noting that
when the BIA sua sponte addresses an otherwise unexhausted issue, failure to raise the issue on
administrative appeal may be excused). The failure to properly exhaust an argument deprives
us of authority to consider it. See 8 U.S.C. § 1252(d)(1); Castro v. Att’y Gen., 671 F.3d 356,
365 (3d Cir. 2012). In addition, our authority to review a determination that a crime was
“particularly serious,” see Alaka v. Att’y Gen., 456 F.3d 88, 101-02 (3d Cir. 2006), is not
unlimited. See Kaplun v. Att’y Gen., 602 F.3d 260, 267 (3d Cir. 2010) (noting that a criminal
alien must present “assertion[s] of legal error” in the determination that a crime was
“particularly serious”).
4
over such a claim.4 See Pieschacon-Villegas v. Att’y Gen., 671 F.3d 303, 309 (3d Cir. 2011)
(court lacks jurisdiction to review criminal alien’s disagreement with BIA’s determination that
his evidence is insufficient to demonstrate eligibility for CAT relief). The BIA concluded that
the record did not support any finding that public officials in Jamaica would acquiesce in any
torture, and Hill has not shown any legal error in that conclusion.
As he did before the BIA, Hill asserts that his due process rights were violated when his
hearing was rescheduled for an earlier date without receiving adequate notice. According to
Hill, he was prejudiced because he was not prepared for the hearing and was unable to have
family and friends appear to testify that his removal would result in extreme hardship.
However, the BIA correctly determined that such testimony could not aid Hill, as he was
ineligible for discretionary relief. See 8 U.S.C. § 1229b(a)(3) (cancellation of removal not
available for aliens convicted of aggravated felonies). Accordingly, Hill’s inability to present
this testimony did not result in any violation of due process.5 See Delgado-Sobalvarro v. Att’y
Gen., 625 F.3d 782, 787 (3d Cir. 2010) (“To establish a violation of due process, the
petitioner[] must show that substantial prejudice resulted from the alleged procedural errors.”).
4
In any event, such a claim is meritless. Nothing in Hill’s testimony asserted that the
Jamaican government would likely torture him or acquiesce to his torture. Furthermore, the
Country Reports do not support Hill’s contention that he would be tortured. While the Country
Reports do note that recent unlawful killings by security force members have occurred, it also
indicates that those members were acting independently of the government and that the
government has taken steps to control corruption. Furthermore, nothing in the Reports
indicates that these killings occurred because the victims supported the JLP. See
Ambartsoumian v. Ashcroft, 388 F.3d 85, 89 (3d Cir. 2004) (country reports described as the
“most appropriate” and “perhaps best resource” on country conditions).
5
In any event, Hill never told the IJ that he was not prepared to proceed, and nothing in the
record indicates that Hill actually sought hardship relief.
5
In his brief, Hill appears to assert that he is eligible for a waiver under former INA §
212(c) as well as a waiver under INA § 212(h). However, he did not exhaust these claims
before the BIA, and we therefore lack jurisdiction to consider them.6 See 8 U.S.C. §
1252(d)(1); Castro v. Att’y Gen., 671 F.3d 356, 365 (3d Cir. 2012).
IV.
For the foregoing reasons, we will deny the petition for review.
6
We note § 212(c) relief was abolished in 1996, and Hill’s crimes occurred long after that.
Furthermore, Hill would be ineligible for § 212(h) relief because of his aggravated felony
conviction. See De Leon-Reynoso v. Ashcroft, 293 F.3d 633, 638 (3d Cir. 2002).
6