NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________

Nos. 21-2667 & 22-1765 ____________

HIEU VAN TRAN,

Petitioner v.

ATTORNEY GENERAL UNITED STATES OF AMERICA ____________

On Petitions for Review of Orders of the Board of Immigration Appeals (A046-574-876) Immigration Judge: Alice Song Hartye ____________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) January 19, 2023 ____________

Before: AMBRO, PORTER, and FREEMAN, Circuit Judges.

(Opinion filed February 3, 2023) ____________

OPINION* ____________

FREEMAN, Circuit Judge.

Hieu Van Tran petitions for review of two decisions: the Immigration Judge’s

order denying relief under the Convention Against Torture and the Board of Immigration

* This disposition is not an opinion of the full Court and pursuant to 3d Cir. I.O.P. 5.7 does not constitute binding precedent. Appeals’ order denying his motion to reopen his removal proceedings. For the reasons

stated, we will deny the petition in part and dismiss in part for lack of jurisdiction.

I.

Tran was born in Vietnam and admitted to the United States as a lawful permanent

resident when he was seven or eight years old. Approximately twenty years later, he was

convicted of drug distribution, in violation of

(a) & (b)(1)(C), which led

him to be placed in removal proceedings. Proceeding pro se, Tran applied for asylum,

withholding of removal, and deferral of removal under the Convention Against Torture

(“CAT”). He asserted that he feared returning to Vietnam based on his race, mixed

ethnic background, religion, and political beliefs. Tran is the child of an Amerasian

parent with African-American ancestry, and he is a Christian.

At the merits hearing, the Immigration Judge (“IJ”) questioned Tran extensively

about the bases for his application for protection under CAT, including his mixed ethnic

background. Tran recounted three childhood incidents where he had been harmed in

Vietnam. First, he described an incident where he picked fruit from a villager’s tree

without permission; the villager retaliated by tying him to a tree, causing Tran to suffer

from ant bites. Upon probing by the IJ, Tran testified he believed he was targeted

because of his race and mixed ethnic background but could not recall the villager’s

saying anything to him during the incident. Second, Tran described an incident where he

and other children were playing on a neighbor’s flooded rice paddy without permission

and the neighbor retaliated by grabbing him and dunking his head repeatedly in water.

He testified he believed he was harmed because he was “messing up” the rice paddy.

2 Administrative Record (“A.R.”) 813.1 Upon the IJ’s probing, Tran also stated he

believed he was targeted because of his mixed ethnic background, though he admitted his

belief was rooted in speculation. Third, during a short visit to Vietnam after relocating to

the United States, a bystander told Tran he did not belong because he came from

America, threw a rock at him, and started a fight that onlookers quickly broke up. Tran

testified that he did not contact government authorities about any of these incidents and

he did not believe the government had ever harmed him.

In response to the IJ’s questions about his religion and political views, Tran

testified that he was not politically active but that he could be imprisoned or killed in

Vietnam because of his belief in freedom or because of his practice of Christianity. The

IJ twice provided him the opportunity to share any additional information about his fear

of returning to Vietnam.

The IJ denied relief. Because of his prior drug distribution offense, Tran was

ineligible for asylum under

(b)(2) and withholding of removal under

(b)(3)(B). The IJ also denied the request for protection under CAT,

concluding that Tran failed to show that he would be subject to torture in Vietnam by or

with the acquiescence of the Vietnamese government.

Tran appealed to the Board of Immigration Appeals (“BIA”). He did not address

his CAT claim in his notice of appeal; his sole contention pertained to his prior drug

1 There are numerous versions of the Administrative Record on the two dockets in this case. Citations herein are to the Administrative Record at Docket Entry 6 in No. 22- 1765. 3 conviction. He argued that the sentencing court and his defense counsel failed to advise

him of the immigration consequences of pleading guilty, and he stated his intent to

collaterally challenge his conviction.2 The BIA dismissed the appeal, noting that Tran’s

conviction remains final for immigration purposes until it is overturned. Because he had

not challenged the IJ’s decisions, the BIA concluded he had waived any such challenges.

He then timely filed a petition for review of the BIA’s decision in this Court.

While his petition for review was pending, Tran filed a motion to reopen his

removal proceedings with the BIA, arguing that his proceedings had been fundamentally

unfair because he was not competent to represent himself and the IJ had failed to develop

the record regarding his CAT claim. He submitted additional country conditions

evidence to support his CAT claim. We held his petition in abeyance for the BIA to

resolve his motion to reopen. On March 31, 2022, the BIA denied the motion as

procedurally improper because Tran had failed to present any material evidence that

could not have been presented in earlier proceedings and had failed to present any indicia

of incompetency. In the alternative, the BIA concluded Tran could not show he was

eligible for relief under CAT. Tran then filed another petition for review in this Court,

and we consolidated his two petitions.

II.

“We have jurisdiction under

(a)(1) to review a final order of the

BIA denying CAT relief.” Myrie v. Att’y Gen.,

(3d Cir. 2017). The

2 He also filed a brief that the BIA rejected as untimely. The brief is not in the record before this Court. 4 scope of our review is limited to the BIA’s order, but if the BIA adopts the IJ’s decision,

we look to both decisions.

We review the BIA’s factual findings under the

substantial-evidence standard, meaning that we will uphold findings of fact unless a

reasonable adjudicator would be compelled to conclude to the contrary, Nasrallah v.

Barr,

(2020), and we review the BIA’s legal determinations de

novo, Serrano-Alberto v. Att’y Gen.,

(3d Cir. 2017). “By contrast, we

review the denial of a motion to reopen for abuse of discretion and will reverse only if the

denial was ‘arbitrary, irrational, or contrary to law.’”

(quoting Abulashvili v. Att’y

Gen.,

(3d Cir. 2011)).

Tran argues that he was denied due process because the IJ “failed to adequately

develop the evidentiary record” for his CAT claim. Petition (“Pet.”) at 10. But Tran did

not assert this due process claim in his appeal to the BIA. When a claim of procedural

error could have been addressed in the first instance by the BIA on appeal but was not,

we lack jurisdiction to review it. Bonhometre v. Gonzales,

(3d Cir.

2005). Accordingly, Tran’s due process claim is unexhausted and beyond this Court’s

review.

Even if we were to consider Tran’s due process claim on the merits, we would not

grant relief. Tran argues that the IJ denied him due process by “limiting the evidentiary

record” and failing to develop the record around the history of Amerasian persecution in

Vietnam. Pet. at 12. But to prevail on his due process claim, Tran must show two things:

(1) that he “was prevented from reasonably presenting his case” and (2) that “substantial

prejudice resulted” from the alleged violation. Serrano-Alberto,

(quoting

5 Fadiga v. Att’y Gen.,

(3d Cir. 2007)). Tran’s argument fails at the first

step.3

The IJ thoroughly questioned Tran about his reasons for seeking CAT relief, the

nature and severity of harm he had previously suffered, and any government

involvement. The IJ also helped Tran connect his testimony to his fear of torture based

on his mixed ethnic background; advised Tran about the type of evidence he could submit

in support of his application; and reviewed country conditions evidence in rendering a

decision. The IJ’s lengthy interaction with Tran hardly resembles those cases where we

have held that an IJ violated due process. See, e.g., Serrano-Alberto,

(IJ

violated due process by belittling, interrupting, and restricting the petitioner’s testimony).

And Tran’s assertion that the IJ should have done more to address Amerasian issues fails

to explain how the IJ prevented him from reasonably presenting his case or how that

resulted in substantial prejudice.4

Tran also challenges the BIA’s order denying his motion to reopen. The BIA

denied that motion because it was not supported by evidence that “is material and was not

available and could not have been discovered or presented at the former hearing.”

(c)(1); see also I.N.S. v. Abudu,

(1988). The Board’s

3 Tran also claims that the IJ applied an incorrect legal standard for determining CAT relief. Pet. at 14. But the IJ correctly identified the elements of a CAT claim and cited the applicable law. A.R. 719–27 (citing Myrie,

). 4 Tran asks this Court to hold that IJs have an affirmative constitutional duty to develop the record. This Court has not expressly addressed whether due process creates such a duty, Serrano-Alberto,

n.8, and we need not resolve that question here. Assuming such a duty exists, the record shows that the IJ fulfilled that duty in addition to her statutory duty under 8 U.S.C. § 1229a(b)(1). 6 decision was not arbitrary, irrational, or contrary to law, and therefore was not an abuse

of discretion. See Serrano-Alberto,

.

Tran argues that he should be excused from the requirement that he support his

motion to reopen with new, material evidence because he was incompetent and lacked

knowledge about the history of Amerasian persecution. But the BIA properly reviewed

the administrative record and did not find any indicia of incompetency. See Matter of M-

A-M-,

(BIA 2011).

Even if Tran’s motion to reopen had been procedurally proper, we would deny

relief because Tran did not establish a prima facie case for relief under CAT. Gen Lin v.

Att’y Gen.,

(3d Cir. 2012). Although Tran identified past harms that

may have been rooted in his mixed ethnic background, he has not established that he is

more likely than not to be tortured “by or at the instigation of or with the consent or

acquiescence of” a Vietnamese official. Sevoian v. Ashcroft,

(3d Cir.

2002) (quoting

(a)(1)). Therefore, the BIA did not abuse its discretion

when it denied his motion to reopen.

III.

Because we lack jurisdiction to review Tran’s due process objection to the IJ’s

CAT decision, we will dismiss that portion of his petition. We otherwise will deny

Tran’s petition for review.

7