1

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-2186

___________

RICHARD REID,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A040- 094- 521)

Immigration Judge: Honorable Margaret R. Reichenberg

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

April 26, 2012

Before: GREENAWAY, JR., ROTH, and TASHIMA,

* Circuit Judges

(Opinion filed: June 12, 2012)

___________

OPINION

___________

PER CURIAM

Richard Reid petitions for review of an order of the Board of Immigration Appeals 

 * Honorable A. Wallace Tashima, Circuit Judge, United States Court of Appeals 

for the Ninth Circuit, sitting by designation. 
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(“BIA”), which dismissed his appeal from an Immigration Judge’s (“IJ”) final removal 

order. For the reasons that follow, we will deny the petition for review.

I.

Reid is a native and citizen of Jamaica. He was admitted as a permanent resident 

in 1986. He was charged with being removable because he had been convicted of: (1) a

controlled substance violation, § 237(a)(2)(B)(i) of the Immigration and Nationality Act 

(“INA”) [8 U.S.C. § 1227(a)(2)(B)(i)]; (2) an aggravated felony under INA 

§ 101(a)(43)(B) [8 U.S.C. § 1101(a)(43)(B)], and INA § 237(a)(2)(A)(iii) [8 U.S.C. 

§ 1227(a)(2)(A)(iii)]; and (3) a firearms or destructive device violation, INA 

§ 237(a)(2)(C) [8 U.S.C. § 1227(a)(2)(C)]. Reid conceded that he had been convicted of 

a controlled substance violation, but denied the other charges. An Immigration Judge 

(“IJ”) found that the Government had failed to meet its burden to show that the controlled 

substance conviction was an aggravated felony, but found that Reid was removable for 

the firearms charge and the controlled substance violation. Reid applied for cancellation 

of removal, pursuant to INA § 240A [8 U.S.C. § 1229b], and also for asylum, 

withholding of removal, and protection under the Convention Against Torture (“CAT”).

The IJ found that the Government had not met its burden of showing that Reid’s 

1993 conviction for criminal sale of (an unspecified) controlled substance in the 5th

degree, in violation of N.Y. Penal Law § 220.31, was an aggravated felony, because 

although the produced indictment listed eight counts, all involving cocaine, none of the 

 
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counts included the offense to which Reid pleaded guilty, and there was no plea transcript 

to clarify the matter. However, the IJ noted that for purposes of cancellation of removal, 

it was Reid’s burden to prove that he had not been convicted of an aggravated felony. 

The IJ noted that Reid testified that the controlled substance he was convicted of selling 

was, in fact, cocaine. The IJ found, given the conviction documents1

The IJ also found that Reid’s crime was “particularly serious,” thus barring him 

from asylum, statutory withholding of removal, and withholding of removal under the 

CAT. 

and Reid’s 

testimony, that he had not met his burden of establishing that he had not been convicted 

of an aggravated felony, and that Reid was thus ineligible for cancellation of removal.

See

The IJ also denied Reid’s request to be granted deferral of removal under the 

CAT, based on his allegation that he is gay. The IJ stated that “[t]he record compels a 

conclusion that the Jamaican government acquiesces in the torture of gay men.” 

However, the IJ found that Reid had failed to meet his burden of establishing that he is 

gay. Reid testified that he realized he was gay in the early ’90s, that the mother of his 

INA §§ 208(b)(2)(A)(ii) & (b)(2)(B)(i) [8 U.S.C. § 1158(b)(2)(A)(ii) & 

(b)(2)(B)(i)] (regarding eligibility for asylum); 241(b)(3)(B)(ii) [8 U.S.C.

§ 1231(b)(3)(B)(ii)] (regarding eligibility for statutory withholding of removal); 8 C.F.R. 

§§ 1208.16(c)(4); 1208.16(d)(2) (regarding eligibility for withholding of removal under 

the CAT).

 1 The conviction documents considered by the IJ included a “Certificate of 

Disposition Indictment,” as well as the underlying indictment. 
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son discovered him in bed with a man in 2001, and that he had gay relationships in the 

United States. The IJ found that Reid’s testimony was consistent with his application, but 

the IJ stated that Reid’s testimony “lacked detail and specificity which would lead the 

court to conclude that it is credible.” 

The IJ also faulted Reid for presenting only two corroborative documents: a 

statement by the mother of his child, Alethia Johnson (who also testified), and a 

statement by his sister. The IJ questioned “the reliability of the information provided” by 

Johnson because of her “obvious bias.” The IJ noted that Reid’s mother was living with 

Johnson, and that Johnson had an interest in having Reid remain in the United States to 

help care for their son. The IJ gave little weight to Reid’s sister’s statement, because she 

did not present herself for cross-examination. The IJ noted that although Reid claimed to 

have had relationships with three men in the United States, Reid said the most recent man 

refused to testify “because he did not want ‘his business’ to be discussed in court.” The 

IJ commented that although Johnson said a man came with Reid when Reid visited their 

son, she could not provide the name of the man. The IJ also faulted Reid for not 

providing statements or testimony from other gay men or lesbians whom he said knew of 

his sexual orientation. 

The IJ concluded that although Reid’s “testimony was consistent with his 

application and corroborated by the mother of his child, the evidence before the Court is 

equally consistent with the story being concocted to provide the Respondent an 

 
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opportunity to avoid deportation despite his serious criminal history.”

In his counseled brief to the BIA, Reid argued that the IJ’s finding that he failed to 

meet his burden of establishing that he was gay was clearly erroneous. Reid pointed to 

Eke v. Mukasey, 512 F.3d 372, 375, 381 (7th Cir. 2008), where the BIA noted that an 

alien who was attempting to establish that he was gay did not submit letters, affidavits, or 

other forms of corroborative evidence, did not provide the name of any partner, and did 

not provide any supporting witnesses. Reid argued that he had provided everything 

found lacking in the Eke

Reid also argued that the IJ should not have relied on his testimony in finding his 

1993 conviction to be an aggravated felony. Reid argued that because the IJ had made an

adverse credibility finding on the issue of whether he was gay, the IJ should not have 

believed him when he said cocaine was involved in his conviction. Reid also argued that 

the burden of proving that his conviction was not an aggravated felony should not have 

shifted to him, because the Government had not met the initial burden of production to 

show that a mandatory bar to cancellation of removal applied. Reid also argued that his 

conviction did not constitute a “particularly serious crime.”

case. Reid argued that the IJ erred in considering that Johnson

could not provide a name for a man with whom she believed Reid was having a 

relationship, as this omission did not go to the heart of his claim. Reid also argued that 

requiring Reid to produce an ex-lover to testify on his behalf created an impossibly high 

standard.

The BIA, acting through a three-member panel, noted that for purposes of 
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cancellation of removal, it was Reid’s “exclusive burden” to prove all requisite facts. 

The BIA agreed with the IJ that Reid had not established that the controlled substance 

involved was not cocaine, and thus he was barred from relief. The BIA also agreed that 

the conviction was for a particularly serious crime, making him ineligible for asylum, 

statutory withholding of removal, and withholding of removal under the CAT. The BIA 

stated that the IJ did not err in relying on Reid’s testimony that the drug involved was 

cocaine, because Reid’s “clear and uncontroverted testimony” constituted “reliable 

information.”

Two members of the BIA found no reason to reverse the IJ’s denial of deferral of 

removal under the CAT. The panel majority agreed with the IJ’s finding that Reid had 

not met his burden of establishing that he is gay. The majority also agreed with the IJ 

“that sufficient reliable corroborating evidence was not provided, and that the respondent 

failed to reasonably explain why he could not obtain it, for the reasons provided in detail” 

by the IJ. One member dissented from this portion of the decision, noting that the IJ “did 

not render an explicit adverse credibility finding,” and noting that she would have found 

the corroborative evidence submitted to be sufficient to establish that Reid was gay. Reid 

filed a timely pro se petition for review.2

II.

 2 Reid filed a motion for stay of removal, but later withdrew the motion before it was 

ruled upon. According to the Government’s brief, he was then removed to Jamaica. 

Resp. Br. at 21. We retain jurisdiction over the petition for review despite Reid’s 

removal. Gomez-Zuluaga v. Att’y Gen., 527 F.3d 330, 339 n.4 (3d Cir. 2008).
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Reid does not dispute that he is removable for having committed a controlled 

substance violation; thus he is a “criminal alien” and this Court lacks jurisdiction to 

consider his petition for review, except to the extent it raises constitutional claims or 

questions of law. See INA § 242(a)(2)(C), (D) [8 U.S.C. § 1252(a)(2)(C), (D)]; 

Papageorgiou v. Gonzales

We lack jurisdiction to consider the factual question of whether Reid provided 

sufficient corroboration of his allegation that he is gay. 

, 413 F.3d 356, 358 (3d Cir. 2005). Reid argues that: (1) he 

provided sufficient corroboration of his allegation that he is gay; (2) the Government has 

a burden of production to show that a mandatory bar to cancellation of removal applies, 

and because it did not meet that burden, he remained eligible for cancellation of removal; 

and (3) the IJ erred in relying on his testimony to establish that his 1993 conviction 

involved cocaine.

See Aden v. Holder, 589 F.3d 

1040, 1046 (9th Cir. 2009) (applying factual review standard to question of sufficiency of 

corroboration); Abraham v. Holder, 647 F.3d 626, 632 (7th Cir. 2011) (IJ’s conclusion 

that applicant lacked sufficient credible evidence to meet standard for untimely asylum 

claim not a question of law). We do have jurisdiction to consider the question of whether 

the BIA failed to apply the right law when it treated him differently than the applicant in 

Eke. However, in Eke the BIA did not state that Eke would have been granted relief if he 

had provided, for instance, the name of a partner, a witness, and an affidavit; rather, its 

description of the types of evidence available “show[ed] that many different kinds of 

materials might have served as corroborating evidence; it was Eke’s failure to present 
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anything useful, combined with gaps and inconsistencies” in his testimony, that 

undermined his case. Eke, 512 F.3d at 381. We do not find that Eke created a standard 

that the BIA failed to apply. As we cannot otherwise review the BIA’s finding that Reid 

failed to meet his burden of establishing that he is gay, we must uphold the BIA’s denial 

of deferral of removal under the CAT.3

We next turn to Reid’s remaining arguments: that the burden of proof to establish 

that he had not been convicted of an aggravated felony did not shift to him, and that the IJ 

erred in relying on his testimony to establish that his 1993 conviction involved cocaine. 

Reid cites 8 C.F.R. § 1240.8(d), the regulation regarding the burden of proof 

applicable where an alien seeks cancellation of removal:

Relief from removal. The respondent shall have the burden of establishing 

that he or she is eligible for any requested benefit or privilege and that it 

should be granted in the exercise of discretion. If the evidence indicates

that one or more of the grounds for mandatory denial of the application for 

relief may apply, the alien shall have the burden of proving by a 

preponderance of the evidence that such grounds do not apply.

(emphasis added). Reid argues that the burden noted in the first sentence of the 

regulation applies only to his burden to establish affirmative grounds for eligibility. He 

argues that if the evidence doesn’t indicate that a ground for mandatory denial applies, 

then the burden mentioned in the second sentence never shifts to the alien to prove that 

 3 Reid argues that the BIA and IJ improperly found his crime to be “particularly serious,” 

thus precluding his eligibility for asylum and withholding of removal. However, because 

he sought that relief based on his allegation that he is gay, and because we do not have 

jurisdiction to review the finding that he failed to meet his burden of establishing that he 

is gay, we need not consider whether his crime was “particularly serious.”
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the grounds do not apply. Reid analogizes to the “firm resettlement bar” context. In 

Abdille v. Ashcroft, 242 F.3d 477, 491 (3d Cir. 2001), the regulation at issue (8 C.F.R. 

§ 208.13(c)(2)(ii) (2000)) provided: “If the evidence indicates that one of the above 

grounds [including the firm resettlement bar] apply to the applicant, he or she shall have 

the burden of proving by a preponderance of the evidence that he or she did not so act.” 

This Court held that the “if the evidence indicates” language meant that the Government 

had the initial burden of producing evidence that the firm resettlement bar applies. Id. If 

the Government met the burden, then the burden would shift to the alien to show that s/he 

had not firmly resettled in a third country. See also Diallo v. Ashcroft, 381 F.3d 687, 

693-94 (7th Cir. 2004) (same). Reid also points to Alvarado v. Gonzales, 449 F.3d 915, 

930 (9th Cir. 2006), where, in the context of a “persecution of others” bar to asylum, the 

Court held that evidence presented by the Government was “sufficient to raise an 

inference” that the mandatory bar applied, thus shifting the burden to the alien. Although 

Reid does not cite cases in the cancellation of removal context, the Ninth Circuit has 

reached a similar result in such cases, using different terminology (considering the effect 

of an “inconclusive record of conviction” rather than pointing to the “if the evidence 

indicates” language).4

 4 See Sandoval-Lua v. Gonzales, 499 F.3d 1121 (9th Cir. 2007), authority affirmed in

Rosas–Castaneda v. Holder, 630 F.3d 881, 888 (9th Cir.2011) (ruling that enactment of 

REAL ID Act does not affect the holding of Lua); but see Vasquez-Martinez v. Holder, 

564 F.3d 712, 716 (5th Cir. 2009) (rejecting argument that initial burden of production of 

evidence that alien is ineligible for discretionary relief lies with government); Garcia v. 

Holder, 584 F.3d 1288, 1290 (10th Cir. 2009) (stating that the Ninth Circuit approach 
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However, here, due to Reid’s admission that the drug involved was cocaine, the 

evidence indicated that a ground for mandatory denial (aggravated felony conviction)

might apply. Nor could one characterize the record before the IJ and BIA as 

“inconclusive,” given Reid’s testimony. Reid argues that under a categorical approach 

the IJ should not have considered evidence outside the record of conviction (i.e., his 

testimony), but he cites no case law supporting his argument that sworn testimony of the 

applicant should not be considered where the alien bears the burden.5

Because we cannot reach the question of whether Reid established that he is gay, 

and because Reid did not meet his burden of establishing that he has not been convicted 

of an aggravated felony, we will deny the petition for review.

 We thus agree that 

Reid did not meet his burden of showing that he was eligible for cancellation of removal.

 

“effectively nullifies the statutorily prescribed burden of proof”); Salem v. Holder, 647 

F.3d 111, 116 (4th Cir. 2011), cert. denied, 2012 WL 33300 (Jan. 9, 2012) (approving of 

Garcia and stating that “Tenth Circuit’s approach hews more closely to the relevant 

statutory text” in shifting burden to alien to establish that he is eligible for cancellation).

5 Reid argues that “because the IJ made an adverse credibility finding as to one aspect of 

the Petitioner’s testimony, if the Petitioner was gay, there is reason to question the 

reliability of the testimony giving rise to the finding that he was convicted of an 

aggravated felony.” Pet. Br. at 4-5. However, the IJ did not explicitly make an adverse 

credibility finding.