NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 12-2481

___________

JUAN PAULINO,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

 Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A043-328-948)

Immigration Judge: Jesus Clemente

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

September 20, 2012

Before: CHAGARES, VANASKIE AND BARRY, Circuit Judges

(Opinion filed: October 1, 2012)

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OPINION

___________

PER CURIAM

Juan Lorenzo Paulino petitions for review of an order of the Board of Immigration 

Appeals (“BIA”) denying his motion to reopen and reconsider his removal proceedings. 

For the reasons that follow, we will deny the petition for review.
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Paulino is a native and citizen of the Dominican Republic who was admitted to the 

United States in 1992 as a lawful permanent resident. In 2002, he was convicted of a 

state drug offense. While serving his sentence, he absconded from a work release 

program in 2004. In 2009, he was convicted in the United States District Court for the 

District of New Jersey of conspiracy to distribute five or more kilograms of cocaine. He

was sentenced to eighty-four months in prison. The Department of Homeland Security 

charged him with removability for an aggravated felony conviction (8 U.S.C. 

§ 1227(a)(2)(A)(iii)), a controlled substance offense (8 U.S.C. § 1227(a)(2)(B)(i)), and 

two crimes involving moral turpitude (8 U.S.C. § 1227(a)(2)(A)(ii)). Paulino conceded 

his removability but sought a deferral of removal under the United Nations Convention 

Against Torture (“CAT”). He claimed that he feared returning to the Dominican 

Republic because of threats of being killed by his drug supplier, Estalin Perez. Paulino 

asserted that Estalin Perez seeks retribution for the lost cocaine as well as for Paulino’s 

having provided the prosecution with information about the federal drug conspiracy. 

Paulino further stated that Estalin Perez is a police officer in the Dominican Republic.

In 2010, after a hearing, the Immigration Judge (“IJ”) denied relief and ordered 

Paulino’s removal. On March 21, 2011, the BIA affirmed the IJ’s decision, finding that 

the evidence was insufficient to show that Estalin Perez is a member of the police force

or that the government of the Dominican Republic would approve of, or be willfully 

blind to, the torture of its citizens by a private individual. On September 23, 2011, we 
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denied Paulino’s petition for review in C.A. No. 11-1877, finding that the record did not 

compel the conclusion that Paulino was entitled to deferral of removal.

On December 27, 2011, Paulino filed with the BIA a motion to reopen and remand

based on changed circumstance, namely, that his fourteen-year-old cousin in the 

Dominican Republic was abducted and beaten by Estalin Perez and his thugs. Paulino 

stated that his cousin lost three teeth and suffered several cuts that required stitches on his 

head. He further stated that the perpetrators told his cousin that the beating was intended 

as a message of what Paulino would face upon his return to the Dominican Republic. On 

January 24, 2012, the BIA denied the motion. The BIA noted that Paulino did not 

support his motion with any corroborating evidence. The BIA also noted that, while the 

attack and threats might constitute changed circumstances, Paulino had not shown that 

they were material to his CAT claim because they constituted private conduct outside of 

the scope of CAT protection. Thus, the BIA concluded that Paulino had not shown that 

he is prima facie eligible for CAT relief, and that the motion was not exempt from the 

time limitation for a motion to reopen.

On February 13, 2012, Paulino filed another motion with the BIA, seeking both

reconsideration of the BIA’s January 24, 2012 decision and reopening of the proceedings 

based on new evidence of the attack on his cousin. In support, Paulino submitted 

evidence including a police report and a sworn affidavit by his aunt regarding the attack 

on her son. On April 24, 2012 the BIA denied the motion. The BIA found that as a 

motion to reopen, it was untimely and number-barred. Further, the BIA found that the 
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motion failed to identify any error of fact or law in its prior decision, and that the new 

evidence did not change the BIA’s prior finding that Paulino had not shown prima facie 

eligibility for relief.

This petition for review followed. We have jurisdiction pursuant to 8 U.S.C. 

§ 1252 to review the BIA’s denial of Paulino’s motion to reconsider and motion to 

reopen, and we apply the abuse of discretion standard to our review. See Borges v. 

Gonzales, 402 F.3d 398, 404 (3d Cir. 2005). Under that standard, the BIA’s decision 

may be reversed only if it is “arbitrary, irrational, or contrary to law.” Id. (citing Guo v. 

Ashcroft

We first consider Paulino’s motion to reconsider. A motion to reconsider must 

specify the errors of fact or law at issue in the prior BIA decision. 8 C.F.R. 

§ 1003.2(b)(1). We agree with the BIA’s finding that Paulino’s motion itself does not 

specify any errors of fact or law. However, the record indicates that Paulino requested 

consideration of the new evidence and a memorandum that he had attempted to file in 

connection with his previous motion to reopen. Paulino argued in that document, and 

now argues in his brief, that the BIA applied the wrong legal standard to his CAT claim. 

He cites 

, 386 F.3d 556, 562 (3d Cir. 2004)).

Silva-Rengifo v. Attorney General, 473 F.3d 58 (3d Cir. 2007), arguing that the 

definition of “acquiescence” that the BIA had adopted in Matter of S-V-, 22 I. & N. Dec. 

1306 (BIA 2000), was incorrect. In Silva-Rengifo, 473 F.3d at 65, we rejected the BIA’s 

conclusion that the acquiescence that must be shown for a CAT claim requires actual 

knowledge of torturous activity, as required in Matter of S-V-. Rather, we held that “an 
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alien can satisfy the burden established for CAT relief by producing sufficient evidence 

that the government in question is willfully blind to such activities.” Id

Paulino’s argument is without merit, because the BIA did not apply the “actual 

knowledge and acquiescence” standard of 

.

Matter of S-V in his case. In its March 21, 

2011 decision, the BIA cited and applied the correct standard of showing that it is more 

likely than not that the alien will be tortured at the instigation of, or with the consent or 

acquiescence of, a public official of the country of removal. See

As for Paulino’s motion to reopen, there appears to be no dispute with the BIA’s 

finding that it was both untimely and number-barred. 

8 C.F.R. 

§§ 1208.16(c)(2), 1208.18(a)(1). Moreover, there is no indication that the BIA applied an

incorrect standard in evaluating the CAT claim in its subsequent decisions in Paulino’s 

case. We conclude that the BIA did not abuse its discretion in denying the motion to 

reconsider.

See 8 U.S.C. 

§§ 1229a(c)(7)(A) & (C)(i); 8 C.F.R. § 1003.2(c)(2). However, the restrictions do not 

apply to motions that rely on evidence of “changed circumstances arising in the country 

of nationality . . . if such evidence is material and was not available and would not have 

been discovered or presented at the previous hearing.” 8 U.S.C. §§ 1229a(c)(7)(C)(ii); 

8 C.F.R. § 1003.2(c)(3)(ii). A motion to reopen must establish prima facie eligibility for 

relief, that is, a reasonable likelihood of establishing entitlement to relief, upon review of 

evidence accompanying the motion as well as record evidence. See Guo, 386 F.3d at 563 

and n.7 (citing Sevoian v. Ashcroft, 290 F.3d 166, 173 n.5 (3d Cir. 2002)).
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Paulino argues that he amply supported his argument of changed circumstances by 

providing additional evidence of the attack on his cousin. However, as noted by the BIA, 

this additional evidence does not alter the earlier finding that Paulino has not 

demonstrated that he is prima facie eligible for CAT relief. To qualify for CAT relief, the 

torture in question must be “inflicted by or at the instigation of or with the consent or 

acquiescence of a public official or other person acting in an official capacity.” 8 C.F.R. 

§ 1208.18(a)(1). As we stated in our September 23, 2011 decision in Paulino’s previous 

petition for review, the undisputed facts in the record do not establish that Estalin Perez is 

a member of the police force, nor do they establish that any public official in the 

Dominican Republic would consent or acquiesce to the mistreatment of Paulino. See

Paulino v. Att’y Gen.

We add that Paulino argues that he is entitled to release from custody in light of 

his assistance to the prosecution in his criminal case and the danger he faces as a result of 

his cooperation. In support, he quotes section 236(c)(2) of the Immigration and 

Nationality Act, 8 U.S.C. § 1226(c)(2), which allows for release of a criminal alien “only 

if the Attorney General decides . . . that release of the alien from custody is necessary to 

provide protection to a witness, a potential witness, [or] a person cooperating with an 

, C.A. No. 11-1877, slip op. at 5-6 (3d Cir. Sept. 23, 2011). Thus, 

the additional evidence that Paulino submitted concerning the attack on his cousin is 

unavailing to warrant reopening.
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investigation into major criminal activity . . . .”1

 We previously determined that this 

argument is “plainly without merit,” because section 236(c) has no connection to 

Paulino’s eligibility for CAT relief. Paulino v. Att’y Gen.

We discern no abuse of discretion in the BIA’s denial of Paulino’s motion to 

reconsider and reopen. Accordingly, we will deny the petition for review.

, C.A. No. 11-1877, slip op. at 

4. We need not revisit that determination here.

 1 Paulino cites to INA § 236(c)(1), relating to custody of criminal aliens, and “INA 

§ 261(c)(2)” in quoting the statutory language above. We interpret the reference to 

section 261 as an inadvertent error.