19-1622 Brown v. Garland BIA A047 924 138

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 17th day of October, two thousand twenty-two. 5 6 PRESENT: 7 RAYMOND J. LOHIER, JR., 8 RICHARD J. SULLIVAN, 9 STEVEN J. MENASHI, 10 Circuit Judges. 11 _____________________________________ 12 13 SHAWN A. BROWN, 14 Petitioner, 15 16 v. 19-1622 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Sarah T. Gillman, Gregory P. 24 Copeland, Rapid Defense Network, 25 New York, NY. 26 27 FOR RESPONDENT: Joseph H. Hunt, Assistant 28 Attorney General; Keith I. 29 McManus, Assistant Director; 1 Rachel L. Browning, Trial 2 Attorney, Office of Immigration 3 Litigation, United States 4 Department of Justice, Washington, 5 DC. 6 7 UPON DUE CONSIDERATION of this petition for review of a

8 Board of Immigration Appeals (“BIA”) decision, it is hereby

9 ORDERED, ADJUDGED, AND DECREED that the petition for review

10 is DENIED.

11 Petitioner Shawn A. Brown, a native and citizen of

12 Jamaica, seeks review of a May 24, 2019 decision of the BIA,

13 denying his motion to reopen. In re Shawn A. Brown, No. A047

14 924 138 (B.I.A. May 24, 2019). We assume the parties’

15 familiarity with the underlying facts and procedural history.

16 Our jurisdiction to review a final order of removal,

17 including a denial of a motion to reopen, is limited when the

18 removal was for an aggravated felony. See 8 U.S.C.

19 § 1252(a)(2)(C); Durant v. U.S. INS,

(2d

20 Cir. 2004). But we have jurisdiction to review the issues

21 raised here whether Brown established his prima facie

22 eligibility for relief under the Convention Against Torture

23 (“CAT”) in connection with his ineffective assistance of

24 counsel claim, and whether his removability is in question — 2 1 because they implicate constitutional claims or questions of

2 law, and because the jurisdictional limitation does not

3 extend to CAT claims. See

(a)(2)(D);

4 Nasrallah v. Barr,

(2020) (holding that

5 the jurisdictional limitations to review of removal orders do

6 not apply to CAT orders given that CAT relief does not affect

7 the validity of final orders of removal); Omar v. Mukasey,

8

(2d Cir. 2008) (“A claim of ineffective

9 assistance of counsel is a constitutional claim.”); Pascual

10 v. Holder,

(2d Cir. 2013) (recognizing that

11 “whether a specific conviction constitutes an aggravated

12 felony” for the purposes of removal is a question of law).

13 The applicable standards of review are well established. See

14 Manning v. Barr,

(2d Cir. 2020) (reviewing

15 questions of law de novo and factual findings for substantial

16 evidence).

17 It is undisputed that Brown’s January 2019 motion to

18 reopen was untimely because he filed it over ten months after

19 his removal order became final. See 8 U.S.C.

20 § 1229a(c)(7)(C)(i) (providing 90-day filing deadline);

21

(c)(2) (same). Although the time for filing 3 1 a motion to reopen may be equitably tolled based on

2 ineffective assistance of counsel, see Iavorski v. U.S. INS,

3

, 126–27 (2d Cir. 2000), the BIA did not err in

4 finding that Brown had failed to show the requisite prejudice

5 for an ineffective assistance claim, see Rabiu v. INS, 41

, 882–83 (2d Cir. 1994). Indeed, Brown did not

7 explain what evidence his prior counsel should have

8 submitted, or what testimony he should have elicited at the

9 removal hearing, to establish Brown’s prima facie eligibility

10 for CAT relief. See

(“In order for [petitioner]

11 to show that his attorney’s failure to file caused him actual

12 prejudice, he must make a prima facie showing that he would

13 have been eligible for the relief and that he could have made

14 a strong showing in support of his application.”). The

15 evidence Brown submitted with his motion did not address the

16 agency’s underlying, dispositive findings that he failed to

17 show that the Jamaican government would likely torture him or

18 acquiesce in his torture or that he would be perceived as a

19 member of the LGBT community.

20 The BIA also did not err in declining to reopen Brown’s

21 case in light of the Supreme Court’s decision in Sessions v. 4 1 Dimaya,

(2018). Even if Dimaya called into

2 question Brown’s removability for an aggravated felony crime

3 of violence, reopening was not warranted because Brown

4 remained removable on the ground that his robbery conviction

5 was an aggravated felony theft offense. See 8 U.S.C.

6 §§ 1101(a)(43)(G), 1227(a)(2)(A)(iii).

7 We have considered all of Brown’s remaining arguments

8 and find them to be without merit. Accordingly, the petition

9 for review is DENIED. All pending motions and applications

10 are DENIED and stays VACATED.

11 FOR THE COURT: 12 Catherine O’Hagan Wolfe, 13 Clerk of Court

5