2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-21-2012

Adrian Jarrett v. Attorney General United States

Precedential or Non-Precedential: Non-Precedential

Docket No. 12-1324

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 12-1324

___________

ADRIAN MARK JARRETT,

Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA,

Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A039-746-263)

Immigration Judge: Honorable Margaret R. Reichenberg

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

August 20, 2012

Before: JORDAN, HARDIMAN and ALDISERT, Circuit Judges

(Opinion filed August 21,2012)

___________

OPINION

___________

PER CURIAM

Adrian Mark Jarrett petitions for review of a final order of removal. For the 

following reasons, we will deny the petition for review.

Jarrett, a citizen of Jamaica, was admitted into the United States as a lawful 

permanent resident in 1985. In 1993, he pleaded guilty in the New Jersey Superior Court, 
2

Middlesex County, to the distribution of cocaine in violation of N.J. Stat. Ann. § 2C:35-

5(b)(3). In 2005, he was convicted by a jury in the New Jersey Superior Court, Somerset 

County, for possession of PCP in violation of N.J. Stat. Ann. § 2C:35-10(a)(1). He was 

placed in removal proceedings pursuant to INA § 237(a)(2)(A)(iii), 8 U.S.C. 

§ 1227(a)(2)(A)(iii), as an alien convicted of an aggravated felony and INA 

§ 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i), as an alien convicted of a controlled 

substance violation. Jarrett admitted to his convictions, and applied for asylum, 

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

Jarrett and his father testified at a hearing before an Immigration Judge (“IJ”). 

Jarrett’s father testified that he had owned a minibus business. He stated that his business 

competitors, who had ties to the Jamaican police, continuously harassed him and in 1982, 

he was beaten by the police. As a result of the harassment, Jarrett’s father left Jamaica, 

and eventually sold his business. Jarrett testified that one day, when he was nine, the bus 

he was riding broke down. His father’s business competitors came to pick up a couple of 

kids, but one of the competitors looked at him “like he wanted to hurt [him].” Jarrett was 

not allowed on the competitor’s bus and had to walk home. Jarrett testified that after that 

incident, “nothing else really happened.” Jarrett also testified that he had returned to 

Jamaica around 1986 with his mother and siblings, and no one was harmed. Jarrett’s 

father testified that he had returned to Jamaica around five times without experiencing 

any harassment. Nevertheless, Jarrett stated that he fears that the minibus competitors 
3

and police who had harassed his father will harm him if he returns to Jamaica. He also 

believed that he would be mistreated as a deportee and because he is “Americanized.”

The IJ found Jarrett removable as charged. The IJ determined that Jarrett’s 1993 

conviction was an aggravated felony, and therefore Jarrett was ineligible for asylum. She 

also determined that the conviction was presumptively a “particularly serious crime,” and 

therefore denied withholding of removal under INA § 241(b)(3)(B), 8 U.S.C. 

§ 1231(b)(3)(B) and the CAT. Finally, she denied Jarrett’s request for deferral of 

removal under the CAT. Jarrett appealed, arguing that he qualified for CAT relief, and 

for the first time claimed that he was as a supporter of “RPG,” which he described as a 

targeted group. The Board of Immigration Appeals (“BIA” or “Board”) affirmed the 

denial of asylum and withholding of removal, noting that Jarrett did not contest that he 

was convicted of an aggravated felony that also qualifies a particularly serious crime. 

The Board also affirmed the denial of deferral of removal under the CAT, agreeing with 

the IJ that he had not established a clear probability of torture based on his and his 

father’s experiences in Jamaica, or as an Americanized Jamaican, deportee, or supporter 

of “RPG.”

Jarrett filed a pro se petition for review. He argues that he was not convicted of an 

aggravated felony, that counsel was ineffective for failing to inform him of the 

immigration consequences of pleading guilty, that an aggravated felony conviction does 

not bar him from asylum relief, and that he qualifies for relief under the CAT. The 
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Government has filed a motion to dismiss for lack of jurisdiction, which a motions panel 

referred to this merits panel.

We have jurisdiction to review a final order of removal pursuant to INA § 242(a), 

8 U.S.C. § 1252(a). We, however, lack jurisdiction to review Jarrett’s claims that he was 

not convicted of an aggravated felony,1that counsel was ineffective for failing to inform 

him of the immigration consequences of pleading guilty, and that an aggravated felony 

conviction does not bar him from asylum relief, because he failed to exhaust his 

administrative remedies as to these claims. Prior to seeking review in this Court, an alien 

must “exhaust[ ] all administrative remedies available to the alien as of right.” INA 

§ 242(d)(1), 8 U.S.C. § 1252(d)(1). This requires an alien to raise each claim or ground 

for relief in his appeal to the Board. Abdulrahman v. Ashcroft, 330 F.3d 587, 594-95 (3d 

Cir. 2003). Jarrett raised only the issue of whether he qualified for CAT relief before the 

BIA. Therefore, these claims are not properly before us.

Because Jarrett was convicted of an aggravated felony and controlled substance 

violation, our jurisdiction is limited to constitutional claims and questions of law. INA 

§ 242(a)(2)(C), (D); 8 U.S.C. § 1252(a)(2)(C), (D). Thus, to the extent that Jarrett argues 

that the BIA erred in determining “what is likely to happen to the [him] if removed[,]” we 

 

1

Jarrett argues specifically that his conviction for possession with intent to 

distribute a controlled dangerous substance near a school in violation of N.J. Stat. Ann. 

§ 2C:35-7 does not constitute an aggravated felony. Assuming he was convicted of that 

offense (which is not clear from the record, A.R. 199), he also failed to exhaust this 

claim.
5

cannot review this claim. See Kaplun v. Att’y Gen., 602 F.3d 260, 271 (3d Cir. 2010). 

To the extent, however, that Jarrett challenges the BIA’s application of the law governing 

CAT protection to the undisputed facts of record, we have jurisdiction to review the 

claim, Toussaint v. Att’y Gen., 455 F.3d 409, 412 n.3 (3d Cir. 2006), and will reject it on 

the merits. The facts concerning what is likely to happen to Jarrett, as determined by the 

Board, do not establish that it is more likely than not that he will be tortured if removed 

to Jamaica. See 8 C.F.R. § 1208.16(c)(2). The BIA determined that the harassment 

Jarrett’s father experienced from former competitors and police and the incident in which 

one of Jarrett’s father’s competitors looked at him “like he wanted to hurt [Jarrett]” were 

remote, and noted that Jarrett and his father have returned to Jamaica without 

experiencing any harm. The Board also noted that the record does not indicate that 

members of “RPG,” deportees, or “Americanized” Jamaicans have been or would be 

targeted. Thus, we conclude that the BIA properly determined that the evidence Jarrett 

presented about what is likely to happen to him if removed to Jamaica did not meet the 

legal definition of torture. See Kaplun, 602 F.3d at 271.

Accordingly, we will deny the petition for review. The Government’s motion to 

dismiss is denied.