NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________ No. 20-3411 ___________ STEPHEN MALONEY BROWN, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA ____________________________________ On Petition for Review of a Decision of the United States Department of Justice Board of Immigration Appeals (BIA-1: A037-333-730) Immigration Judge: Nelson A. Vargas-Padilla ____________________________________ Submitted Under Third Circuit L.A.R 34.1(a) December 14, 2021 Before: GREENAWAY, JR., KRAUSE, and PHIPPS, Circuit Judges (Opinion filed: May 31, 2022) OPINION* * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. KRAUSE, Circuit Judge. Stephen Maloney Brown, a Jamaican national, petitions for review of a decision by the Board of Immigration Appeals (“BIA”) denying his motion to remand his removal proceedings and dismissing his appeal from the decision of the Immigration Judge (“IJ”). For the reasons set forth below, we will deny the petition. Discussion1 In his motion to remand, Brown argues that his prior counsel provided ineffective assistance by not filing an application for deferral of removal under the Convention Against Torture (“CAT”) and by electing not to pursue relief before the IJ without his knowledge or consent. To warrant remand, Brown “must demonstrate that ‘competent counsel would have acted otherwise’ and that he was ‘prejudiced by counsel’s poor performance.’”2 Calderon-Rosas v. Att’y Gen., 957 F.3d 378, 388 (3d Cir. 2020) (quoting Fadiga v. Att’y Gen., 488 F.3d 142, 157 (3d Cir. 2007). Brown’s claim fails on the prejudice prong. To be eligible for deferral of removal under the CAT, Brown would need to show that he would likely be tortured by or with the acquiescence of the Jamaican government 1 The BIA had jurisdiction under 8 C.F.R. § 1003.1(b)(3), and we have jurisdiction over Brown’s petition for review under 8 U.S.C. § 1252(a)(1). See Cruz v. Att’y Gen., 452 F.3d 240, 246 (3d Cir. 2006). We review the BIA’s denial of his motion to remand for abuse of discretion, see Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004), and “the Board’s determination of an underlying procedural due process claim,” including Brown’s ineffective assistance of counsel claim, de novo, Calderon-Rosas v. Att’y Gen., 957 F.3d 378, 383 (3d Cir. 2020). 2 Brown also satisfied the BIA’s procedural requirements for ineffective-assistance claims. See Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). 2 if he were removed to Jamaica. 8 C.F.R. § 1208.16(c)(2); Auguste v. Ridge, 395 F.3d 123, 151 (3d Cir. 2005). The evidence Brown submitted with his motion to remand, however, is insufficient to establish a “reasonable probability” that he would have met the standard for CAT relief and that “the IJ would not have entered an order of removal absent counsel’s errors.” Fadiga, 488 F.3d at 159. Though Brown’s statement alleges continuing threats against his life as recently as 2020, there is no evidence that the threatened acts would be carried out by or with the acquiescence of the Jamaican government. Likewise, while Brown stated that he …
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