Omar Steele v. Attorney General United States ( 2023 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
Nos. 21-3260 & 22-2887
(consolidated)
___________
OMAR ALBERTO STEELE,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A097-513-211)
Immigration Judge: Alice Song Hartye
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
August 18, 2023
Before: SHWARTZ, BIBAS, and MONTGOMERY-REEVES, Circuit Judges
(Opinion filed August 23, 2023)
___________
OPINION*
___________
PER CURIAM
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Omar Alberto Steele, proceeding pro se, seeks review of decisions of the Board of
Immigration Appeals (“BIA”) affirming an Immigration Judge’s (“IJ”) denial of his
application for deferral of removal, and denying his subsequent motion to reopen. For
the reasons that follow, we will deny the petitions.
I.
Steele entered the United States as a visitor from Panama in August 1998 and did
not depart. In 2013, Steele was convicted of federal controlled substance offenses and
sentenced to 120 months of incarceration. Thereafter, Steele was charged with being
removable as, inter alia, a noncitizen convicted of an aggravated felony, see 8 U.S.C. §§
1227(a)(2)(A)(iii), 1101(a)(43)(B) & (U), and a noncitizen convicted of a controlled
substance offense, see 8 U.S.C. § 1227(a)(2)(B)(i). At a hearing before the IJ, Steele,
through counsel, conceded the charges and his ineligibility for asylum or withholding of
removal because of his criminal convictions, but sought deferral of removal under the
Convention Against Torture (“CAT”).
Steele’s application for CAT relief revolved around his fear of Alberto Barrera
Candelaria (“Barrera”). Steele identified Barrera as a convicted murderer and drug lord
who escaped from Panamanian custody and was eventually apprehended in the United
States. Steele asserted that Barrera believed Steele was responsible for his apprehension
and threatened Steele and his family as a result. Steele testified that he believed Barrera
killed his mother, who was murdered in Panama in 2010, shortly after Barrera’s
deportation to the country. While a neighbor witnessed the murder and was interviewed
by detectives, she was unable to identify the shooter. Steele also testified that Barrera’s
2
brother, Enrique Barrera, was a government official in Panama, but that he was unsure
what position the brother held in the government.
The IJ denied relief. Although she found Steele’s testimony to be credible, the IJ
determined, inter alia, that there was no “objective evidence” to support Steele’s
allegation that Barrera was responsible for his mother’s murder, and that the evidence
was insufficient to establish that Barrera was in Panama or would be aware of Steele’s
return. IJ Op. at 8-9. The IJ acknowledged that Steele “received numerous threats in the
United States,” id. at 8, but concluded that, even if Steele could establish that Barrera was
present in Panama and would target him, the record did not support a finding that the
Panamanian government would acquiesce to harm by Barrera. Id. at 9.
Through counsel, Steele filed a notice of appeal and indicated that a separate
written brief would be filed. However, counsel never filed a brief in support of the
appeal. After considering the arguments raised in the notice of appeal, the BIA adopted
and affirmed the IJ’s decision, agreeing that Steele had not shown that it was more likely
than not that he would be tortured or that a government official would consent or
acquiesce to any torture that he would face. See BIA Op. at 2. Specifically, the BIA
rejected Steele’s argument that his credible testimony should have been sufficient to
establish his claim and found no clear error in the IJ’s determination “that the record does
not establish that the man [Steele] fears is the same man that killed his mother.” Id. The
BIA further determined that neither the identification of Barrera’s brother as a
government official, nor the Panamanian government’s “inability to identify [Steele’s]
mother’s killer,” were sufficient to show “that government officials in Panama [] would
3
condone or acquiesce to the torture that [Steele] fears.” Id. at 2-3. Steele filed a timely
pro se petition for review, which was docketed at C.A. No. 21-3260.
Subsequently, Steele filed a pro se motion to reopen with the BIA, asserting
ineffective assistance of counsel as well as newly acquired evidence. Among other
allegations, Steele asserted that his counsel was ineffective for failing to pursue a possible
claim to U.S. citizenship. The BIA denied his motion. Steele filed another pro se
petition for review, which was docketed at C.A. No. 22-2887. His petitions are
consolidated for disposition.
II.
We have jurisdiction under 8 U.S.C. § 1252(a)(1). Because the government lacks
the authority to remove a person unless he or she is a noncitizen, see Ng Fung Ho v.
White, 259 U.S. 276, 284 (1922), we turn first to Steele’s assertion of U.S. citizenship.
This Court generally has jurisdiction to adjudicate nationality claims in removal
proceedings. 8 U.S.C. § 1252(b)(5). If the claim presents no genuine issue of material
fact, the Court can decide the issue as a matter of law; otherwise, the Court transfers the
proceedings to the District Court for an evidentiary hearing. See id. In determining
whether a genuine issue of material fact is presented, we employ principles of summary
judgment practice. See Joseph v. Att’y Gen., 421 F.3d 224, 229-30 (3d Cir. 2005).
“Accordingly, … the party seeking what amounts to summary judgment, ‘bears the
burden of establishing that no genuine issue of material fact exists and that the undisputed
facts establish [its] right to judgment as a matter of law.’” Id. at 230 (quoting Rodriquez
v. New York, 72 F.3d 1051, 1060-61 (2d Cir. 1995)).
4
Although Steele entered the United States on a visitor’s visa, reported Panamanian
citizenship, and conceded through counsel before the IJ to being a noncitizen, Steele now
claims citizenship based on 8 U.S.C. § 1403(a). Section 1403(a) provides that “any
person born in the Canal Zone on or after February 26, 1904, and … whose father or
mother or both at the time of the birth of such person was or is a citizen of the United
States, is declared to be a citizen of the United States.”
Steele has not presented any evidence of citizenship that raises a genuine issue of
material fact. As evidenced by his birth certificate, see A.R. at 49,1 Steele was born in
the Canal Zone in 1970. However, his birth certificate identifies both parents as
Panamanian citizens. While Steele asserts that his father was a U.S. citizen at the time of
his birth, he provides no evidence to support his claim other than an assertion that his
“mother told him that [h]is father obtain[ed] his naturalization right around 1967.” C.A.
No. 21-3260, ECF No. 15 at 4. Even accepting as true that his mother made such a
statement to him, the fact of the statement alone is insufficient to raise a genuine issue of
material fact.2 Without more, Steele has no persuasive claim to U.S. citizenship.
1
All references to the agency record are to the record filed in C.A. No. 22-2887 at ECF
No. 6.
2
The notice to appear issued to Steele in connection with his deportation proceedings
noted that Steele previously made a claim to U.S. citizenship “based on the belief his
father is a naturalized USC, acquiring citizenship prior to his birth, due to his fathers [sic]
employment in the American Canal Zone in Panama.” A.R. at 485. As a result of that
claim, “[a] request was sent to the Office of Principal Legal Advisor (OPLA),
Philadelphia, PA (York), for a United States Citizen Claim memorandum to be
conducted. OPLA-Philadelphia concluded that STEELE had not made a probative claim
to U.S. citizenship.” Id.5
We turn next to Steele’s challenge to the agency’s determination that he failed to
establish his eligibility for deferral of removal under the CAT. Because Steele is
removable by virtue of his conviction for an aggravated felony, our jurisdiction is
generally limited to questions of law and constitutional claims, see 8 U.S.C. §
1252(a)(2)(D), although we retain jurisdiction to review factual challenges to CAT
decisions, see Nasrallah v. Barr, 140 S. Ct. 1683, 1688 (2020). We review the agency’s
findings under the substantial-evidence standard pursuant to which “[t]he agency’s
findings of fact are conclusive unless any reasonable adjudicator would be compelled to
conclude to the contrary.” Id. at 1692 (citation omitted). Because the BIA affirmed and
adopted the IJ’s opinion, we review both the IJ’s and the BIA’s opinions. See Ordonez-
Tevalan v. Att’y Gen., 837 F.3d 331, 340-41 (3d Cir. 2016).
To establish a claim for deferral of removal, Steele was required to demonstrate,
through objective evidence, “that it is more likely than not” that he will be tortured if
removed. See 8 C.F.R. § 1208.16(c)(2), § 1208.17(a); § 1208.18(a)(1); Sevoian v.
Ashcroft, 290 F.3d 166, 175 (3d Cir. 2002). The determination as to whether a petitioner
has met his burden involves the two-fold inquiry set forth in Myrie v. Attorney General,
855 F.3d 509, 516 (3d Cir. 2017): (1) “whether an applicant has met the burden of
establishing that it is more likely than not [that he] would be tortured if removed”; and (2)
“whether public officials will acquiesce in the likely treatment.” Quinteros v. Att’y Gen.,
945 F.3d 772, 786 (3d Cir. 2019) (citation and internal quotation marks omitted).
In considering the second prong, the IJ must first “make[] a factual finding . . . as
to how public officials will likely act in response to the harm the petitioner fears,” and
6
next “assess[] whether the likely response from public officials qualifies as acquiescence
under the governing regulations.” Myrie, 855 F.3d at 516. “For purposes of CAT claims,
acquiescence to torture requires only that government officials remain willfully blind to
torturous conduct and breach their legal responsibility to prevent it.” Silva-Rengifo v.
Att’y Gen., 473 F.3d 58, 70 (3d Cir. 2007).
Among other findings, the IJ concluded that, even if Steele was able to establish
that it is more likely than not that he would be tortured if removed, IJ. Op. at 9, Steele is
not eligible for deferral of removal under the CAT because he failed to demonstrate that
Panamanian authorities “would acquiescence or be willfully blind to any perspective [sic]
torture.” IJ Op. at 9. This determination is supported by substantial evidence. As noted
by the IJ, and consistent with the 2020 Panama Country Report considered by the Court,
Panama has a functioning government, including functioning law enforcement, police,
and courts. Further, the record before the IJ lacked evidence showing that Panamanian
authorities would acquiesce in, or be willfully blind to, the torture feared by Steele.
While Steele asserted that Barrera’s brother is an elected government official, nothing in
the record before the IJ suggested that the brother had “a requisite level of authority to
control or direct government officials in Panama or police such that they would condone
or acquiescence [sic] in any harm that Barrera may do to respondent if returned.” Id.3
3
To the extent that Steele attempts to present new evidence or expand on his testimony,
we may not consider such evidence in reviewing the agency’s final order of removal. See
8 U.S.C. § 1252(b)(4)(A) (stating that a petition for review shall be decided “only on the
administrative record on which the order of removal is based”).
7
Steele disagrees with the IJ’s conclusions regarding country conditions, and points
to the lack of an arrest in his mother’s murder as evidence of acquiescence. However, as
demonstrated by Steele’s own testimony and submissions, law enforcement conducted an
investigation and interviewed at least one witness who was unable to identify the
gunman. See A.R. at 378, 419; IJ Op. at 8 (“The neighbor who witnessed the murder was
unable to observe who the shooter was.”). As such, his argument does not change our
conclusion that substantial evidence supports the agency’s ruling.4
We turn next to Steele’s challenge to the denial of his motion to reopen, which we
review for abuse of discretion. See Filja v. Gonzales, 447 F.3d 241, 251 (3d Cir. 2006).
Under this standard, we “will not disturb the BIA’s decision unless it is found to be
arbitrary, irrational, or contrary to law.” Liem v. Att’y Gen., 921 F.3d 388, 395 (3d Cir.
2019) (internal quotation marks and citations omitted).
Steele sought reopening on the grounds of ineffective assistance of counsel and
newly available evidence. See A.R. at 137. The BIA denied the motion to reopen as
untimely, and declined to reopen sua sponte pursuant to 8 C.F.R. § 1003.2(a) because
Steele failed to “allege[] or otherwise establish[] that the untimeliness of the present
4
As the record is insufficient to establish government acquiescence in the feared harm,
we need not consider Steele’s arguments that the IJ, in considering the first prong of the
Myrie analysis, “repeatedly faulted him for the lack of corroboration evidence” without
first conducting the three-part inquiry required by Abdulai v. Ashcroft, 239 F.3d 542, 554
(3d Cir. 2001). 3d Cir. ECF No. 15 at 9; see also Saravia v. Att’y Gen., 905 F.3d 729,
737 (3d Cir. 2018). The IJ’s conclusions as to the second Myrie prong are independent of
any corroboration analysis and, as discussed above, are supported by substantial
evidence.
8
motion is attributable to the ineffective assistance of his former counsel.” BIA Order. at
2. The BIA noted that, even if it were to consider the motion on the merits, it would
decline to reopen for various reasons, including that the allegations against counsel were
“vague and conclusory,” and that Steele failed to “establish[] prejudice.” Id.5 The BIA
further determined that the affidavit from Smith “essentially reiterates the same claim for
CAT protection as that which was presented to the Immigration Judge,” and did not
establish “a material change in Panamanian country conditions.” Id.5
Steele asserted that his counsel was ineffective because she “did not explain to me what
evidence would be appropriate for the court and did not work with me on obtaining such
evidence, which led to lack of corroboration,” and because she “failed to submit an
appeal brief on my behalf to the BIA.” A.R. at 142. Steele also asserted that counsel
“dismissed my claims for U.S. citizenship although I was born in Panama in 1970 on a
U.S. military base.” A.R. at 148. The BIA did not abuse its discretion in concluding that
Steele could not show prejudice based on those allegations. To the extent that we may
consider Steele’s ineffectiveness claims in the first instance, see Santos-Zacaria v.
Garland, 143 S. Ct. 1103, 1120 (2023) (finding that “[s]ection 1252(d)(1)’s exhaustion
requirement is not jurisdictional and does not oblige a noncitizen to seek discretionary
review”), we come to the same conclusion.
Rather than summarily dismiss the appeal for failure to file a brief, see 8 C.F.R. §
1003.1(d)(2)(E), the BIA considered the arguments raised in the notice of appeal in
reviewing the IJ’s opinion and found no error. As already discussed, Steele has not
established a viable claim to citizenship. As such, he cannot show prejudice as a result of
counsel’s alleged failure to pursue such a claim. As noted by the BIA, Steele failed to
establish “that the failure to file a brief in his case affected the adjudication of the appeal”
or specify “any evidence that, had it been submitted, would have altered the result in this
case.” BIA Or. At 2. An undated affidavit from his friend reasserted the same general
information previously presented to the IJ, and was based on “word on the street” as
opposed to first-hand knowledge. And the information regarding Barrera’s brother’s
specific position as Regional Director of the Ministry of Labor and Labor Development is
insufficient to show that he would acquiesce to the harm feared by Steele or be in a
position to influence the actions of the police or judiciary to turn a blind eye to any
threats.
9
We discern no abuse of discretion in the BIA’s denial of Steele’s motion to
reopen. The BIA correctly determined that Steele’s motion to reopen was untimely, and
Steele does not meaningfully dispute this conclusion on appeal. As a general rule, a
motion to reopen must be filed within ninety days of the date of the final administrative
decision. 8 U.S.C. § 1229a(c)(7)(A), (C)(i). The BIA’s final decision on removal was
rendered on November 10, 2021. Steele’s motion to reopen was filed, at the earliest, on
April 26, 2022, well outside the allowable ninety-day time frame. While the deadline for
motions to reopen may be equitably tolled on the basis of ineffective assistance of
counsel, equitable tolling is an extraordinary remedy, and the alien must have acted with
due diligence. See Mahmood v. Gonzales, 427 F.3d 248, 251-53 (3d Cir. 2005). As
noted by the BIA, Steele failed to establish that his failure to file his motion to reopen in
a timely manner was in any way attributable to his counsel’s ineffectiveness. Nor has he
shown that he acted with due diligence in seeking to reopen. Thus, he has not shown that
he was entitled to equitable tolling.6
Accordingly, we will deny the petitions for review.
6
To the extent Steele argues that he met an exception to the filing deadline because he
established a material change in country conditions, we find this argument to lack merit
for substantially the same reasons set out in the Government’s brief. See C.A. No. 22-
2887, ECF No. 11 at 9-10.
10