FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 December 4, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 08-11464

Non-Argument Calendar

________________________

Agency No. A43-218-522

CONROY GARDNER,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

_________________________

(December 4, 2008)

Before BIRCH, HULL and PRYOR, Circuit Judges.

PER CURIAM:
Conroy Gardner, a native and citizen of Jamaica, petitions for review of the

denial of his applications for asylum and withholding of removal under the

Immigration and Nationality Act and the United Nations Convention Against

Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment. INA

§ 241(b)(3), 8 U.S.C. § 1231(b)(3); 8 C.F.R. § 208.16(c). The Board of

Immigration Appeals and the immigration judge ruled that Gardner was ineligible

for asylum because he had been convicted of an aggravated felony and was not

entitled to deferral of removal because he had not proved a likelihood that he

would be tortured if he returned to Jamaica. The Board also rejected Gardner’s

complaints of the denial of due process by the immigration judge. We deny the

motion to dismiss filed by the Attorney General, and we deny Gardner’s petition.

I. BACKGROUND

Gardner entered the United States in March 1992 as a legal permanent

resident. Gardner’s mother was naturalized in July 1999 after Gardner turned

eighteen. Gardner never applied for citizenship.

In June 2007, Gardner received a notice to appear charging him with

removal because he had been convicted of an aggravated felony. INA §

237(a)(2)(A)(iii). The second page of the notice stated that Gardner could be

“represented in [the removal] proceeding” by counsel of his choice or he could

choose from “[a] list of qualified attorneys and organizations who may be available

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to represent [him] at no cost” that would be “provided with [the] Notice.” Gardner

did not receive a copy of the list.

In July 2007, because Gardner was incarcerated, the immigration judge

conducted Gardner’s initial removal proceeding by telephone under the Florida

institutional hearing program. The immigration judge inquired if Gardner had an

attorney and Gardner responded in the negative. The immigration judge gave

Gardner the option to either postpone the hearing to obtain counsel or to represent

himself. Gardner responded, “I would like to speak on my own behalf.”

Gardner admitted that he had been convicted in April 2007 in a state court of

aggravated battery with a deadly weapon. The immigration judge advised Gardner

that he could be removed because of his conviction. After finding that Gardner did

not qualify for derivative citizenship or adjustment of his status, the immigration

judge ordered Gardner removed.

Gardner stated that he feared persecution as a homosexual in Jamaica. The

immigration judge advised Gardner that he could apply for withholding of

removal, but cautioned that he might be ineligible if his conviction was a

“particularly serious crime.” The judge also advised Gardner that he could apply

for deferral of removal and explained that, to obtain relief under the Convention,

Gardner would “have to show that the government of Jamaica would actually

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torture [him] if [he was] to return to . . . Jamaica.” When Gardner stated that he

intended to apply for relief, the immigration judge told Gardner that he had

the right to submit supporting documents in support of [his] . . . claim.

In other words, if [he had] articles, newspapers [sic] articles or, or

anything else that would show that . . . homosexuals are being

persecuted in Jamaica and you want to submit those you . . . should

submit those. If you have witnesses that can support your . . . claim,

then they should be present at the hearing.

The immigration judge also reminded Gardner of his right to counsel. The

judge told Gardner that he had the “right to get an attorney to represent you at the

hearing” and advised Gardner to “work on getting an attorney to represent you.”

The immigration judge twice advised Gardner that his removal hearing would be

conducted by video and instructed a corrections officer to give Gardner “Form Q . .

. and U.” Gardner completed an application to register as a permanent resident or

adjust status. Gardner sought relief based on his “fear of death upon return to

Jamaica because of life style homosexuality.”

The immigration judge conducted Gardner’s removal hearing by telephone.

The judge advised Gardner that he had submitted the incorrect application and

allowed Gardner to complete an application for asylum and withholding of

removal. In this application, Gardner sought relief under the Convention and

alleged that he, his family, and his friends had been mistreated because “many

Jamaican [sic] hate homosexuals for no cause.” Gardner explained that he feared

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“be[]ing killed or harm[ed]” by “the people of the c[o]untry, police . . . because as

a[] Jamaican [he] under[went] many hate threats . . . in the pas[t] from Jamaicans

and [he had] read article and facts about the killings from the police and people in

the c[o]untry” about which he had “evidence and prove [sic].” Gardner admitted in

the application that he had been convicted of domestic violence with a deadly

weapon and received probation, which was later revoked because he was

“defending” himself and received a sentence of eighteen months of imprisonment.

Gardner submitted with his application a newspaper article that detailed the murder

of a leading gay rights activist in Jamaica; described verbal and physical violence

against homosexuals as “commonplace”; and recounted witness reports that police

had joined a mob that chopped, stabbed, and stoned a man believed to be

homosexual.

The immigration judge had before him several other documents, including

the 2006 Country Report for Jamaica and the record of Gardner’s conviction for

aggravated battery. The Country Report stated that the Jamaican government

generally respected human rights, but that a homosexual organization “continued

to report” incidents against homosexuals that included “arbitrary detention” by

police, harassment by the police and prison staff, and attacks by citizens. The

report also stated that, although police had made few arrests for incidents by

Jamaican citizens, an individual had been sentenced to imprisonment for life for

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killing a prominent homosexual rights activist. The report also stated that persons

identified as homosexuals by prison wardens “were held in a separate facility for

their protection.” Included in the documents of Gardner’s conviction was a

probable cause affidavit that stated that Gardner had become angry and attacked

Alfred Nelson with several knives when Nelson attempted to leave their house;

Nelson received several defensive wounds on his left hand; Nelson told police that

“he was in fear of his life”; and police found broken vases and overturned furniture

in the house.

At the removal hearing, Gardner offered excuses for his convictions and

argument to support his application. Gardner testified that he had cut Nelson by

accident after a chandelier fell on Gardner’s head and that he later violated his

probation when he was blamed for causing a mob to attack him. Gardner also

admitted that he had pleaded guilty to battery and had been arrested for

prostitution. Gardner stated that he feared, based on “numerous of articles about

things happening in Jamaica” and conversations with his “own family members,”

that he would be killed or persecuted for his homosexuality. Gardner alleged that

people would know he was a homosexual by the way he walked.

The immigration judge denied the application. The judge ruled that Gardner

was statutorily ineligible for asylum and withholding of removal because of his

conviction for aggravated felony, which the judge “consider[ed] . . . a particularly

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serious crime.” The judge found that Gardner was eligible for deferral of removal,

but that he had not established a likelihood that he would be tortured by the

Jamaican government. The judge found that Gardner had a legitimate “fear of

being discriminated against and possibly harmed . . . by other citizens of Jamaica . .

. because of his sexual orientation[,] [b]ut [found that] there [was] no hard

evidence to suggest that the government of Jamaica condone[d] . . . [or] turn[ed] a

blind eye” or “participat[ed]” in “such conduct.”

The Board dismissed Gardner’s appeal. The Board “affirm[ed]” the findings

of the immigration judge that Gardner’s conviction was an “aggravated

felony/crime of violence . . . under sections 237(a)(2)(A)(iii) and 101(a)(43)(F) of

the Immigration and Nationality Act” and a “particularly serious crime.” The

Board rejected Gardner’s argument that the conviction was a misdemeanor as

“incorrect[] as a matter of the clear terms of the Florida statute at issue and . . . the

18-month sentence imposed in his case,” and found Gardner “ineligible for

asylum.” The Board found that Gardner was ineligible for deferral of removal

under the Convention. Even though the record contained evidence of

discrimination and societal violence, “the record lack[ed] evidence to show that it

was more likely than not that [Gardner] would be tortured either by government

authorities themselves or with their acquiescence.”

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The Board rejected Gardner’s arguments that the immigration judge violated

Gardner’s right to due process. Although Gardner received the incorrect

application form, Gardner completed the correct form at the hearing and “through

questioning by the Immigration Judge, the nature of [Gardner’s] claim was set out

on the record.” The Board found that, despite evidence that Gardner did not make

a “knowing waiver of representation” or receive a “list of free legal service

providers[,]” the record did not “indicate any procedural error that meaningfully

prevented [him] from applying for relief” or affected his ability “to prove the

required elements of a Convention Against Torture claim.”

After Gardner filed a petition for review in this Court, we issued to the

parties three jurisdictional questions: (1) whether the Immigration and Nationality

Act “limits [our] jurisdiction over the petition”; (2) “whether the specific

constitutional challenges or questions of law, if any, raised by [Gardner] are

reviewable”; and (3) if Gardner sought “judicial relief of the denial of discretionary

relief, whether the Act “preclude[d] [our] jurisdiction if the Attorney General or

the Secretary of Homeland Security did not, in fact exercise any discretion in

denying the requested relief.”

II. STANDARDS OF REVIEW

We review de novo an issue of subject-matter jurisdiction.

Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006).

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“We review constitutional challenges de novo.” Lonyem v. U.S. Att’y Gen., 352

F.3d 1338, 1341 (11th Cir. 2003). We review the decision of the Board to

determine whether it is “supported by reasonable, substantial, and probative

evidence on the record considered as a whole.” Al Najjar v. Ashcroft, 257 F.3d

1262, 1284 (11th Cir. 2001). “To reverse [those] fact findings, we must find that

the record not only supports reversal, but compels it.” Mendoza v. U.S. Att’y

Gen., 327 F.3d 1283, 1287 (11th Cir. 2003). We review the legal conclusions of

the Board de novo. Id. at 1287 n.6.

III. DISCUSSION

Both Gardner and the government present two issues for our review.

Gardner challenges as arbitrary and capricious the denial of his request for deferral

of removal and argues that the immigration judge violated his right to due process.

The government responds that we do not have jurisdiction to entertain Gardner’s

petition and that Gardner failed to exhaust his administrative remedies and

abandoned his requests for relief. We address first our subject-matter jurisdiction

and then Gardner’s arguments.

A. We Have Subject-Matter Jurisdiction To Entertain Gardner’s Petition.

This Court lacks “jurisdiction to review any final order of removal against

an alien who is removable by reason of having committed a criminal offense

covered in section 1182(a)(2) or 1227(a)(2)(A)(iii)” of Title 8. INA §

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242(a)(2)(C); 8 U.S.C. § 1252(a)(2)(C). “Any alien who is convicted of an

aggravated felony at any time after admission is deportable.” 8 U.S.C. §

1227(a)(2)(A)(iii). The jurisdiction of this Court is also limited by section

242(a)(2)(C) of the Immigration and Nationality Act:

Notwithstanding any other provision of law . . . no court

shall have jurisdiction to review – (i) any judgment

regarding the granting of relief under [section 240A,] . . .

or (ii) any other decision or action of the Attorney

General or the Secretary of Homeland Security the

authority for which is specified . . . to be in the discretion

of the Attorney General or the Secretary of Homeland

Security.

8 U.S.C. § 1252(a)(2)(B).

Despite these limitations, Congress in the REAL ID Act restored our

jurisdiction to review constitutional questions and “questions of law” that an alien

raises in a petition for review:

Nothing in [section 1252(a)(2)(C)], or in any other

provision of this Act (other than this section) which

limits or eliminates judicial review, shall be construed as

precluding review of constitutional claims or questions of

law raised upon a petition for review filed with an

appropriate court of appeals in accordance with this

section.

REAL ID Act § 106(a)(1)(A)(iii) (codified at 8 U.S.C. § 1252(a)(2)(D)); Balogun

v. U.S. Att’y Gen., 425 F.3d 1356, 1359 (11th Cir. 2005). Notwithstanding the

jurisdictional bars contained in subsections 242(a)(2)(B) and (C), we retain

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jurisdiction under subsection 242(a)(2)(D) to review constitutional challenges to a

removal order and “questions of law.” This Court lacks jurisdiction to review

discretionary or factual determinations when subsections 242(a)(2)(B) or (C)

apply. Martinez v. U.S. Att’y Gen., 446 F.3d 1219, 1222 (11th Cir. 2006).

We have jurisdiction to entertain Gardner’s arguments. Section

242(a)(2)(D) gives this Court jurisdiction to consider Gardner’s arguments that the

immigration judge violated his constitutional rights, 8 U.S.C. § 1252(a)(2)(D), and

erred, as a matter of law, by denying him relief under the Convention. See JeanPierre v. U.S. Att’y Gen., 500 F.3d 1315, 1322 (11th Cir. 2007) (“we have

jurisdiction to review [a] claim . . . [that] challenges the application of an

undisputed fact pattern to a legal standard”). Gardner also has exhausted

administrative remedies. Gardner presented the Board the same issues he argues in

this petition and he received an adverse ruling from the Board. We deny the

motion to dismiss filed by the Attorney General.

B. The Immigration Judge Did Not Violate Gardner’s Right to Due Process.

Gardner argues that the immigration judge violated his right to due process

in three ways. He argues that the immigration judge failed to follow procedural

rules, did not confirm that Gardner was aware of his right to appointed counsel,

and failed to conduct a hearing to determine whether his conviction for aggravated

battery was a particularly serious crime. These arguments fail.

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Gardner has not established that the immigration judge violated his right to

due process. Although aliens are entitled to due process under the Fifth

Amendment, Fernandez-Bernal v. U.S. Att’y Gen., 257 F.3d 1304, 1311 (11th Cir.

2001), “[i]n order to establish a due process violation, an alien must show that he

or she was deprived of liberty without due process of law and that the asserted

error caused him substantial prejudice.” Garcia v. U.S. Att’y Gen., 329 F.3d 1217,

1222 (11th Cir. 2003) (citations omitted). For this Court to find substantial

prejudice, the alien must establish that, in the absence of the alleged violations, the

outcome of the proceeding would have been different. Ibrahim v. INS, 821 F.2d

1547, 1550 (11th Cir. 1987).

Gardner has not established substantial prejudice regarding the denial of his

applications for asylum and withholding of removal. Gardner’s conviction for an

aggravated felony made him ineligible for asylum and withholding of removal.

See INA § 208(b)(2)(A)(ii), (b)(2)(B)(i); 8 U.S.C. § 1158(b)(2)(A)(ii), (b)(2)(B)(i);

see also Fla. Stat. § 784.045(2) (“[w]hoever commits aggravated battery shall be

guilty of a felony of the second degree”). Gardner cannot establish that, but for

any denial of due process, the outcome of his removal hearing would have been

different.

Gardner also cannot establish prejudice regarding his application for deferral

of removal. Although Gardner was given the incorrect application form, the

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immigration judge advised Gardner of his burden of proof and his right to

introduce corroborating evidence. Gardner was later allowed to complete the

correct form, explain the reasons that he sought deferral of removal, and introduce

evidence to corroborate his argument that homosexuals are discriminated against

and face violence in Jamaica. Gardner also was not entitled to appointed counsel.

See Dakane v. U.S. Att’y Gen., 399 F.3d 1269, 1273–74 (11th Cir. 2005). Gardner

cannot establish that he was prejudiced by the failure of the immigration judge to

hold a hearing on Gardner’s conviction because his request for deferral of removal

was based on his failure to prove that he would be tortured if returned to Jamaica.

C. Gardner Is Ineligible for Deferral of Removal.

To be eligible for deferral of removal under the Convention, an alien has the

burden to prove that he will, more likely than not, be tortured if removed to his

country of origin. 8 C.F.R. § 208.16(c)(2). Torture is confined to those acts

inflicting “severe pain and suffering, whether physical or mental” committed at the

hands, under the direction, or with the acquiescence of “a public official or other

person acting in an official capacity.” 8 C.F.R. § 208.18(a)(1). “Acquiescence of a

public official requires that the public official, prior to the activity constituting

torture, have awareness of such activity and thereafter breach his or her legal

responsibility to intervene to prevent such activity.” 8 C.F.R. § 208.18(a)(7).

“Public officials or other persons acting in an official capacity must be involved,

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and the treatment must be directed at a person within their custody or physical

control.” Jean-Pierre, 500 F.3d at 1323 (citing 8 C.F.R. § 208.18(a)(1)); see also 8

C.F.R. § 208.18(a)(6).

The Board did not err in its application of the law regarding deferral of

removal. Although Gardner presented evidence that Jamaican citizens discriminate

against and even inflict violence on homosexuals, the Board found that Gardner

failed to prove that public officials turn a blind eye to those crimes or persecute

homosexuals in their custody or control. Under the Convention, Gardner is

ineligible for deferral of removal.

IV. CONCLUSION

Gardner’s petition for review is DENIED.

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