Steve Balbosa v. Attorney General United States

NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ________________ Nos. 17-2420 & 17-3508 ________________ STEVE DEVIN GREGOR BALBOSA, a/k/a Steve Brown,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 ...

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