NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 12-1314

___________

COX MELBOURNE WASHINGTON,

Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA,

Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A041-466-123)

Immigration Judge: Honorable Amiena A. Khan

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

August 10, 2012

Before: SLOVITER, SMITH and COWEN, Circuit Judges

(Opinion filed: August 15, 2012)

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OPINION

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PER CURIAM

Cox Melbourne Washington petitions for review of a final order of removal. For 

the following reasons, we will deny the petition for review.

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

permanent resident in 1988. In 1991, Washington pleaded guilty in the Superior Court of 
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New Jersey, Essex County, for possession with intent to distribute cocaine, in violation of 

N.J. Stat. Ann. § 2C:35-5(b)(3). He was sentenced to two years of probation. In 1996, 

Washington pleaded guilty in the Superior Court of New Jersey, Essex County, to 

aggravated assault, in violation of N.J. Stat. Ann. § 2C:12-1(b)(1), and in 2001, he was 

sentenced to a term of five years of imprisonment.

In 2010, Washington was placed in removal proceedings with charges under INA 

§ 237(a)(2)(A)(ii), 8 U.S.C. § 1227(a)(2)(A)(ii), as an alien convicted of two or more 

crimes involving moral turpitude, not arising out of a single scheme of criminal 

misconduct, and INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), as an alien 

convicted of an aggravated felony. Washington admitted to his convictions and conceded 

removability. As relief from removal, he applied for asylum, withholding of removal, 

and relief under the Convention Against Torture (“CAT”) based on his involvement with 

the Jamaica Labor Party (“JLP”).

At a hearing before an Immigration Judge (“IJ”), Washington testified that he had 

been threatened and harmed by members of the People‟s National Party (“PNP”) due to 

his involvement with the JLP. He testified that in 1966, when he was a teenager, he was 

hit with a tool. In 1968, police had kicked his feet and pushed him into a Jeep, and in a 

separate incident, PNP members had hit him in the head with a bottle, which injured his 

lip, nose, and finger. He stated that in June 1967, members of PNP murdered his father, 

stabbing his father in the back of a truck. After leaving Jamaica in 1988, Washington 

returned in 1990 to visit his mother, and testified that he did not experience any problems 

during that two day visit. Washington also stated that he was still a member of the JLP, 
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but has not been an active member since arriving in the United States.

The IJ denied relief and ordered Washington removed to Jamaica. The IJ found 

Washington “credible with regard to the prior occurrences in Jamaica,” but found that his 

testimony was inconsistent with his application for relief and not plausible in light of 

country conditions. The IJ noted that Washington testified that his father was murdered 

in June 1967 after being stabbed by members of PNP, but Washington‟s asylum 

application stated that his father survived the attack. The IJ also noted that the incidents 

of violence Washington experienced last occurred in 1969, and that JLP was the present 

party in power in Jamaica. Thus, the IJ determined that Washington established neither 

that he has a well founded fear of persecution based on his political opinion, nor that it is 

more likely than not that he would be tortured if removed to Jamaica. Additionally, the IJ 

noted that Washington was not eligible for asylum or withholding of removal based on 

his aggravated felony conviction.1

Washington appealed to the Board of Immigration Appeals (“BIA”), arguing that 

the IJ‟s adverse credibility finding was not based on substantial evidence and that the IJ‟s 

denial of relief under CAT should be overturned. The BIA dismissed his appeal. The 

BIA noted that Washington did not challenge the denial of his applications for asylum 

and withholding of removal, and limited its analysis to Washington‟s CAT claim. The 

BIA determined that notwithstanding the IJ‟s credibility finding, Washington failed to 

establish that he was entitled to relief under CAT. The BIA noted that there has been a 

 

1 The IJ also granted the Government‟s oral motion to pretermit Washington‟s 

application for asylum and withholding of removal based on Washington‟s aggravated 

felony conviction. 
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long passage of time since he was actively involved with JLP, the record does not contain 

evidence that JLP members are being tortured in Jamaica, JLP has a majority of the seats 

in the Jamaican House of Representatives, and the prime minister of Jamaica is a member 

of JLP. Washington then filed a pro se petition for review. In his brief in support of the 

petition for review, he argues that the BIA erred in determining that he had been 

convicted of an aggravated felony, the IJ‟s adverse credibility finding was not supported 

by substantial evidence, the BIA erred in denying withholding of removal, and the BIA 

erred in denying relief under CAT.2 He claims that the BIA failed to consider evidence 

regarding the willful blindness of government officials to the violent actions of the PNP 

and the IJ improperly based its determination solely because he failed to provide 

corroborating evidence. 

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

8 U.S.C. § 1252(a). “Before we reach the merits of [Washington‟s] petition, we must 

first address the government‟s argument that we lack jurisdiction over any portion of 

[his] petition.” Pareja v. Att‟y Gen., 615 F.3d 180, 186 (3d Cir. 2010). 

We first address the Government‟s contention that we lack jurisdiction to review 

Washington‟s claim that the BIA erred in denying his application for withholding of 

removal for failure to exhaust his administrative remedies. Prior to seeking review in this 

Court, an alien must “exhaust[ ] all administrative remedies available to the alien as of 

 

2

In his motion for a stay of removal, Washington also argued that he was not afforded a 

fair hearing or given the chance to seek relief from removal and ineffective assistance of counsel. 

He has not discussed these claims in his brief and therefore they are waived. See Kost v. 

Kozakiewicz, 1 F.3d 176, 182 (3d Cir. 1993). 
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right.” INA § 242(d)(1), 8 U.S.C. § 1252(d)(1). To exhaust a claim, “an applicant must 

first raise the issue before the BIA . . . so as to give it „the opportunity to resolve a 

controversy or correct its own errors before judicial intervention.‟” Bonhometre v. 

Gonzales, 414 F.3d 442, 447 (3d Cir. 2005) (citing Zara v. Ashcroft, 383 F.3d 927, 931 

(9th Cir. 2004)). Washington raised only two claims before the BIA: (1) the IJ‟s adverse 

credibility finding was not based on substantial evidence; and (2) the IJ improperly 

denied CAT relief. We therefore agree with the Government that we lack jurisdiction to 

review Washington‟s claim that the BIA erred in denying his application for withholding 

of removal. We also conclude that we lack jurisdiction to review his claim that the BIA 

erred in determining that he had been convicted of an aggravated felony because he failed 

to exhaust that claim as well. See Lin v. Att‟y Gen., 543 F.3d 114, 119 (3d Cir. 2008).

The Government also contends that we lack jurisdiction to review Washington‟s 

remaining claims, which contest the IJ‟s adverse credibility determination and the BIA‟s 

denial of CAT relief. We generally lack jurisdiction to review a final order of removal 

against an alien, such as Washington, who is removable by reason of having committed 

an aggravated felony. INA § 242(a)(2)(C), 8 U.S.C § 1252(a)(2)(C). However, we retain 

jurisdiction over constitutional claims or questions of law. INA § 242(a)(2)(D), 8 U.S.C 

§ 1252(a)(2)(D).

A credibility determination, however, is a factual issue. See Jishiashvili v. Att‟y 

Gen., 402 F.3d 386, 392 (3d Cir. 2005); see also Gourdet v. Holder, 587 F.3d 1, 5 (1st 

Cir. 2009) (noting credibility is a factual finding). Thus, Washington‟s challenge to the 

adverse credibility finding is a question of fact, which we lack jurisdiction to review. See
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INA § 242(a)(2)(C), (D), 8 U.S.C § 1252(a)(2)(C), (D).

We conclude that we also lack jurisdiction to review Washington‟s argument that 

the BIA improperly disregarded probative evidence in support of his CAT claim, as 

arguments pertaining to an alleged failure to consider evidence do not give rise to 

questions of law under INA 242(a)(2)(D); 8 U.S.C. § 1252(a)(2)(D). Jarbough v. Att‟y 

Gen., 483 F.3d 184, 189 (3d Cir. 2007). Additionally, we may not review Washington‟s 

arguments contesting the IJ‟s analysis because the BIA issued its own decision. See

Sheriff v. Att‟y Gen., 587 F.3d 584, 588 (3d Cir. 2009). Insofar as Washington attempted 

to argue that the BIA improperly denied his CAT claim for failure to provide 

corroborating evidence, this is a question of fact, which we lack jurisdiction to review. 

See INA § 242(a)(2)(C), (D), 8 U.S.C § 1252(a)(2)(C), (D); Abdulai v. Ashcroft, 239 

F.3d 542, 552 (3d Cir. 2001). 

To the extent, however, that Washington 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 evidence presented by Washington does not show 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). Washington‟s testimony and background materials focus on events that 

occurred in the 1960s, not the current country conditions. He also did not indicate that he 

experienced any problems as a member of the JLP while he remained in Jamaica from 

1970 to 1988. Further, the country report does not support Washington‟s contention that 

he will be tortured as a member of JLP. See Ambartsoumian v. Ashcroft, 388 F.3d 85, 89 
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(3d Cir. 2004) (country reports described as the “most appropriate” and “perhaps best 

resource” on country conditions). The country report does not state that members of JLP 

are being tortured in Jamaica. Instead, the report notes that the JLP won 32 of the 60 

seats in the Jamaican House of Representatives and the Jamaican prime minister is a 

member of the JLP. Therefore, the BIA did not err in denying Washington relief under 

CAT.

Accordingly, we will deny the petition for review.