1

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 13-1912

___________

ANDRE LE-VAR HILL,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA,

 Respondent 

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A039-751-543)

Immigration Judge: Honorable Andrew Arthur

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

October 2, 2013

Before: SMITH, CHAGARES and SHWARTZ, Circuit Judges

(Opinion filed: October 4, 2013)

___________

OPINION

___________

PER CURIAM

Andre Le-Var Hill (“Hill”) petitions for review of the Board of Immigration Appeals’ 

(“BIA” or “Board) dismissal of his appeal. For the following reasons, we will deny the 

petition for review.
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I.

Hill, a citizen of Jamaica, entered the United States as a lawful permanent resident in 

1985. In 1999, he was convicted of possession of marijuana in the fourth degree in New York, 

in violation of N.Y. Penal Law. § 221.15, and sentenced to probation. In 2011, he was 

convicted in the Southern District of New York of being a fugitive in possession of a firearm 

and ammunition in violation of 18 U.S.C. § 922(g)(2), and sentenced to 18 months’ 

imprisonment. Subsequently, he was served with a Notice to Appear charging him with being 

removable under 8 U.S.C. § 1227(a)(2)(A)(iii) on the basis of an aggravated felony firearms 

offense as defined by 8 U.S.C. § 1101(a)(43)(E)(ii); under 8 U.S.C. § 1227(a)(2)(B)(i) for a 

controlled substances violation; and under 8 U.S.C. § 1227(a)(2)(C) for a firearms violation.

At a hearing before the Immigration Judge (“IJ”), Hill admitted the factual allegations 

but testified that if he were removed to Jamaica, he would be subject to persecution and torture 

by the government because of his family’s association with the Jamaican Labor Party (“JLP”), 

the opposition party to the ruling People’s National Party (“PNP”). The IJ concluded that 

Hill’s federal firearms conviction rendered him ineligible for withholding of removal because 

it was a “particularly serious crime.”1 See 8 U.S.C. § 1231(b)(3)(B)(iv). Alternatively, he 

concluded that Hill’s application failed on the merits. The IJ also denied Hill’s application for 

deferral of removal under the Convention Against Torture (“CAT”), noting that the evidence 

did not support Hill’s claim that he would likely face torture based upon his political 

affiliation.

 

1 Hill did not file an application for asylum.
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On appeal to the BIA, Hill did not challenge the IJ’s removability findings and his 

determination that Hill’s federal firearms conviction barred him from withholding of removal. 

The BIA found no error in the IJ’s determinations that Hill had not demonstrated eligibility for 

withholding of removal and that he was not likely to face torture in Jamaica. In his appeal, Hill 

asserted that his due process rights were violated when his hearing was rescheduled without 

adequate notice because he was unable to have family members present to testify as to the 

hardship consequences of his removal. However, the BIA determined that he had not shown 

the necessary prejudice because he was ineligible for discretionary relief, did not submit any 

additional evidence on appeal that he was unable to present to the IJ, and had not indicated 

before the IJ that he was not prepared to proceed. This petition for review followed.

II.

Generally, we lack jurisdiction to review a final order of removal against an alien, like 

Hill, who is removable for having been convicted of an aggravated felony.

2

 8 U.S.C. § 

1252(a)(2)(C). We retain jurisdiction, however, to review any constitutional or legal questions 

raised in his petition for review. See 8 U.S.C. § 1252(a)(2)(D); Cruz v. Att’y Gen., 452 F.3d 

240, 246-47 (3d Cir. 2006).

III.

As an initial matter, Hill has not challenged the IJ’s determination that his aggravated 

felony conviction rendered him ineligible for withholding of removal. As a result, this issue is 

 

2

The agency correctly concluded that Hill was an aggravated felon based upon his conviction 

under 18 U.S.C. § 922(g)(2). See 8 U.S.C. § 1101(a)(43)(E)(ii).
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waived.3 See Bradley v. Att’y Gen., 603 F.3d 235, 243 n.8 (3d Cir. 2010) (arguments not 

raised in opening brief are waived).

Hill does challenge the BIA’s denial of relief under the CAT. We may review only 

legal questions regarding Hill’s eligibility, however; factual questions are outside the scope of 

our reviewing authority. See Pierre v. Att’y Gen., 528 F.3d 180, 184 (3d Cir. 2008) (en banc). 

Hill appears to allege that the BIA failed to consider relevant evidence concerning whether he 

established eligibility for deferral of removal under the CAT. We may review this claim. See

Green v. Att’y Gen., 694 F.3d 503, 508 (3d Cir. 2012). (addressing the merits of criminal 

alien’s claim that “the IJ and BIA committed legal error by ignoring relevant evidence in the 

record”). But Hill has failed to specify any specific evidence that was overlooked, and we 

discern no error on our own.

Hill also appears to challenge the weight the agency gave to his evidence when 

evaluating his eligibility for CAT relief. See id. (recognizing that petitioner’s “real argument is 

not that relevant evidence was ignored, but rather that the IJ incorrectly weighed evidence in 

making factual determinations”). However, as we have just indicated, we lack jurisdiction 

 

3

In any event, we would lack jurisdiction over such a claim. For one thing, Hill did not argue 

to the BIA that the IJ erred in determining that he was ineligible for withholding of removal 

because his firearms conviction was “particularly serious.” Nor did the BIA consider the 

question on its own. See Lin v. Att’y Gen., 543 F.3d 114, 123-24 (3d Cir. 2008) (noting that 

when the BIA sua sponte addresses an otherwise unexhausted issue, failure to raise the issue on 

administrative appeal may be excused). The failure to properly exhaust an argument deprives 

us of authority to consider it. See 8 U.S.C. § 1252(d)(1); Castro v. Att’y Gen., 671 F.3d 356, 

365 (3d Cir. 2012). In addition, our authority to review a determination that a crime was 

“particularly serious,” see Alaka v. Att’y Gen., 456 F.3d 88, 101-02 (3d Cir. 2006), is not 

unlimited. See Kaplun v. Att’y Gen., 602 F.3d 260, 267 (3d Cir. 2010) (noting that a criminal 

alien must present “assertion[s] of legal error” in the determination that a crime was 

“particularly serious”). 
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over such a claim.4 See Pieschacon-Villegas v. Att’y Gen., 671 F.3d 303, 309 (3d Cir. 2011) 

(court lacks jurisdiction to review criminal alien’s disagreement with BIA’s determination that 

his evidence is insufficient to demonstrate eligibility for CAT relief). The BIA concluded that 

the record did not support any finding that public officials in Jamaica would acquiesce in any 

torture, and Hill has not shown any legal error in that conclusion.

As he did before the BIA, Hill asserts that his due process rights were violated when his 

hearing was rescheduled for an earlier date without receiving adequate notice. According to 

Hill, he was prejudiced because he was not prepared for the hearing and was unable to have 

family and friends appear to testify that his removal would result in extreme hardship. 

However, the BIA correctly determined that such testimony could not aid Hill, as he was 

ineligible for discretionary relief. See 8 U.S.C. § 1229b(a)(3) (cancellation of removal not 

available for aliens convicted of aggravated felonies). Accordingly, Hill’s inability to present 

this testimony did not result in any violation of due process.5 See Delgado-Sobalvarro v. Att’y 

Gen., 625 F.3d 782, 787 (3d Cir. 2010) (“To establish a violation of due process, the 

petitioner[] must show that substantial prejudice resulted from the alleged procedural errors.”).

 

4

In any event, such a claim is meritless. Nothing in Hill’s testimony asserted that the 

Jamaican government would likely torture him or acquiesce to his torture. Furthermore, the 

Country Reports do not support Hill’s contention that he would be tortured. While the Country 

Reports do note that recent unlawful killings by security force members have occurred, it also 

indicates that those members were acting independently of the government and that the 

government has taken steps to control corruption. Furthermore, nothing in the Reports 

indicates that these killings occurred because the victims supported the JLP. See

Ambartsoumian v. Ashcroft, 388 F.3d 85, 89 (3d Cir. 2004) (country reports described as the 

“most appropriate” and “perhaps best resource” on country conditions).

5

In any event, Hill never told the IJ that he was not prepared to proceed, and nothing in the 

record indicates that Hill actually sought hardship relief.
6

In his brief, Hill appears to assert that he is eligible for a waiver under former INA § 

212(c) as well as a waiver under INA § 212(h). However, he did not exhaust these claims 

before the BIA, and we therefore lack jurisdiction to consider them.6 See 8 U.S.C. § 

1252(d)(1); Castro v. Att’y Gen., 671 F.3d 356, 365 (3d Cir. 2012).

IV.

For the foregoing reasons, we will deny the petition for review.

 

6 We note § 212(c) relief was abolished in 1996, and Hill’s crimes occurred long after that. 

Furthermore, Hill would be ineligible for § 212(h) relief because of his aggravated felony 

conviction. See De Leon-Reynoso v. Ashcroft, 293 F.3d 633, 638 (3d Cir. 2002).