[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 20-12521

____________________

EMMANUEL PRIVA, 

Petitioner,

versus

U.S. ATTORNEY GENERAL, 

Respondent.

____________________

Petition for Review of Final Administrative 

Removal Order 

Agency No. A214-114-358

____________________

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2 Opinion of the Court 20-12521

Before WILSON, LAGOA, and ED CARNES, Circuit Judges.

LAGOA, Circuit Judge:

Emmanuel Priva, a native and citizen of Haiti, petitions 

this Court for review of his Final Administrative Removal Order 

and adverse reasonable fear determination, which were both issued during Priva’s expedited removal proceedings as an alien 

convicted of an aggravated felony under the Immigration and Nationality Act (“INA”) § 238(b), 8 U.S.C. § 1228(b). Under 8 C.F.R. 

§ 208.31(g)(1), no further administrative appeal was available to 

Priva, but he could seek direct review by this Court. After careful 

review and with the benefit of oral argument, we deny the petition.

I. FACTUAL AND PROCEDURAL BACKGROUND 

On December 19, 2014, Priva entered the United States on 

an R-1 non-immigrant visa. Priva applied to adjust his status to 

that of conditional permanent resident, which was approved on 

August 25, 2017. On March 1, 2018, Priva was arrested on several 

counts of visa fraud and conspiracy to commit visa fraud, in violation of 18 U.S.C. §§ 1546(a) and 371. On December 12, 2019, Priva was convicted of those counts and sentenced to twenty-seven

months’ imprisonment. 

 On March 11, 2020, the Department of Homeland Security 

(“DHS”) issued Priva, who was serving his sentence in a federal 

correctional facility in Georgia, a Notice of Intent to Issue a Final 

Administrative Removal Order (“FARO”) under INA, § 238(b), 8 

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U.S.C. § 1228(b). The notice of intent stated that Priva was deportable under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), 

because he was convicted of an aggravated felony as defined in 

INA § 101(a)(43)(P), 8 U.S.C. § 1101(a)(43)(P). The notice also 

stated that Priva may be represented, at no expense to the government, by counsel. Priva acknowledged receipt of the notice

and requested withholding or deferral of removal, stating that he 

feared persecution and torture if he was returned to Haiti. On 

May 14, 2020, DHS issued Priva a FARO based on the notice of 

intent.1 

Priva’s case was referred to an asylum officer to determine 

whether Priva had a “reasonable fear” of prosecution or torture. 

On May 19, 2020, Priva briefly sat for a reasonable fear interview, 

telling the asylum officer that he had an attorney to represent 

him. His attorney asked to reschedule the interview so he could 

speak with Priva first, and that request was granted. Priva was 

also served later in the reasonable fear interview proceedings with 

a list of pro bono legal service providers. 

First Reasonable Fear Interview

On May 26, 2020, Priva sat for his first substantive reasonable fear interview with an asylum officer. During this interview,

Priva’s counsel appeared telephonically. Priva was read, with 

1 This first FARO did not contain a completed certificate of service. DHS 

later cancelled the first FARO in July 2020 and issued Priva a second notice of 

intent and a second FARO on July 28 and August 13, 2020, respectively. 

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4 Opinion of the Court 20-12521

help from an interpreter, a M-488 form explaining the reasonable 

fear process. Priva stated that he understood it and had no questions about the information. He also received and signed a physical copy of that form, which had attached to it the list of pro bono 

legal service providers. Priva was offered “48 hours to rest and 

consult with family members, friends, or anyone else between the 

time that [he] receive[d] that information and . . . the interview,” 

but he elected to continue. During the interview, Priva stated 

that he lived in Haiti from 2009 to 2011 but had not returned since 

2011. Priva also stated that he was “never” physically harmed, 

threatened, or mistreated by anyone in Haiti. 

As to “future harm,” Priva asserted that he was “afraid to 

return” to Haiti, specifically stating:

In the last few years I was involved in helping some 

folks enter the U.S. from my country. . . . The deal 

was you give me money and if you do not get your 

visa then you would get your money back. I was 

not able to reimburse those people because the government stole my car, my bank account, they stole 

everything I had. So now I’m unable to reimburse 

them. They know me and I know them. If I go 

there without being able to reimburse people there 

is no way that I will make it out. They are waiting 

for their money. They said that in their statements 

and emails.

Priva stated that if he could not reimburse the people he owed 

money to, which Priva estimated to be at least 100, he “would be 

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20-12521 Opinion of the Court 5

persecuted and tortured and killed.” Priva claimed that he had 

received threats from more than twenty people. He stated that 

he began receiving threats in 2018 following his arrest, as the 

people threatening him had “googled” his name and knew he was 

in jail. The asylum officer asked Priva for an example of such 

threats. Priva responded that the individuals “cursed” him and 

stated that if they did not get their money back, and if he was deported back to Haiti, “then [his] life will pay for [the] money,” as 

they could get machetes or guns. Priva also claimed that his wife 

used to receive “many” threatening messages. He claimed that

his friends and brother were also threatened by these people. 

The asylum officer asked what Priva meant when he stated 

he would be persecuted, to which Priva replied he could be killed 

with a machete, as he knew of “many groups of people” who had 

killed “many people before [him].” Priva also named the “group 

of people” he owed money to as “police officers” whom he used 

to deal with, or people “related to them.” Priva stated that seven 

other people who were in the same situation were killed by the 

people they owed money to but that he did not know if the 100 

people he owed money to had specifically killed others. He also 

stated that “two ministers” in Haiti had threatened him. Additionally, Priva said a police officer had sent a message to his friend 

a month prior stating that “with [his] gun [he doesn’t] play and 

[he could] blow [his] mind within a second” and demanding Priva 

to send the money. Priva also stated that this police officer could

find him because “Haiti is so small and very connected,” that he 

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6 Opinion of the Court 20-12521

“was dealing with everybody in every single area,” that the people 

who he owed money could see him on social media as a deportee, 

and that he could not hide. And he said that if someone knew his 

address in Haiti, the people who he owed money to could find 

him. Priva asserted that the Haitian government could not protect him because it was not able to “even protect itself,” as civilians in the country often killed police officers and government officials. He stated that there was no other reason he feared to return to Haiti and that there was nowhere in Haiti he could live 

and be safe. 

As to relief under the Convention Against Torture, Priva

stated that he had never experienced any mistreatment, threats, 

or harm from anyone in the Haitian government, military, or police until he “got involved in this situation,” referencing the 

threats from the “police officers.” He also stated a “minister”

working for the government had threatened to kill him because of 

the owed money and that he was afraid he could be harmed by 

public officials in the future. And he claimed that if he reported 

the threats, things would get “even worse” because Haitian officials and police were “corrupt.” But Priva stated he never reported a crime to the police in Haiti where they refused to help him. 

The asylum officer asked Priva if he knew of anyone who had reported a crime to the police in Haiti, and he stated that “[i]t became worse for them,” that his friend reported to the police that 

his girlfriend was kidnapped by a group of people and the police 

had killed him because the kidnappers worked for the police. PriUSCA11 Case: 20-12521 Date Filed: 05/12/2022 Page: 6 of 33
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va also stated he was never threated or harmed—and did not fear 

being threatened or harmed—in Haiti because of his race, ethnicity, religion, political beliefs, or nationality. And he was not a 

member of any groups or organizations in Haiti. 

Second Reasonable Fear Interview

On May 28, 2020, Priva attended another reasonable fear 

interview. Priva’s counsel was present telephonically. During 

this interview, Priva’s counsel asked Priva when he was first 

threatened, which Priva said occurred when he was in detention 

for his visa fraud conviction. During his questioning of Priva, Priva’s counsel did not introduce any evidence of country conditions 

in Haiti. 

Third and Final Reasonable Fear Interview

On June 3, 2020, Priva had a final reasonable fear interview,

where counsel was again present telephonically. The asylum officer asked Priva if he ever was directly threatened by any of the 

people he feared. Priva replied that he had directly spoken, with 

help from a friend, to a man named “Jon,” who had previously

sent him money. Jon called Priva “a thief” because he owed him 

money. Jon also stated that “he will make sure he will get his 

money” using “every single tool” if Priva was sent back to Haiti

and that “they” would terminate Priva. Priva said that Jon, who 

was a police officer for seventeen years, was fired because he mistakenly killed a person and that Jon reminded him of the incident. 

Priva also said that Jon’s brother, a police officer in Haiti, knew he 

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8 Opinion of the Court 20-12521

owed Jon money and claimed that Jon and his brother could “use 

every single tool to finish” him, as they had done it before. Priva 

understood “tools” to mean that Jon had a gun. And he stated 

that Jon still had close connections to the Haitian police.

Asylum Officer’s Reasonable Fear Findings 

Following the final interview, the asylum officer made the 

following reasonable fear findings: the asylum officer found Priva 

credible but concluded there was “no reasonable fear of persecution established and no reasonable fear of tortured established.” 

In the “Reasonable Fear Determination Checklist and Written 

Analysis,” the asylum officer found that Priva “ha[d] not demonstrated that the harm he fears in the future is on account of a protected ground,” as Priva feared “he will be killed because he was 

paid to help the people he fears with visa’s [sic] and he was unable 

to provide them with what they paid him for”—which was not a 

protected ground.2 While several threats were from police officers and other public officials, the asylum officer found that Priva 

2 We note that the asylum officer’s checklist is not entirely consistent as to 

the torture finding. In one area of the checklist, the asylum officer checked 

“Yes” as to whether Priva established a reasonable possibility of torture. But

immediately below this section of the checklist, the officer wrote his written 

analysis explaining why Priva “ha[d] not demonstrated that a public official 

would consent or acquiesce to his future torture if he returns to Haiti.” Given this subsequent written explanation and the conclusion in the reasonable 

fear finding that there was “no reasonable fear of torture established,” we 

conclude that the asylum officer did not find Priva had established a reasonable possibility of torture.

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could not provide evidence showing that they were acting under 

“the color of law.” Rather, Priva’s testimony showed that those 

officers and officials were acting as private individuals in threatening Priva, noting that the “tools” those individuals were using to 

threaten him—locating him and his family by using Facebook and 

finding out whether he was deported on the Haitian news—were 

“insufficient to indicate” that “the police and other public officials 

[Priva] fears . . . would be acting in their official capacities and not 

as private individuals.” Additionally, the asylum officer found 

Priva had not shown that a public official would consent or acquiesce to his future harm, finding that (1) his claims about the Haitian police were not supported by specific evidence, (2) Priva had 

never reported crimes, including these threats, to the Haitian police and had them refuse to help, and (3) “Jon,” the former police 

officer threatening Priva, was fired for an unlawful killing, showing that Haitian police would act against their own officers. 

Priva requested a review by an immigration judge of the 

asylum officer’s negative reasonable fear determination. Priva 

was served a notice of the referral to the immigration judge. The 

notice, which was read and explained to Priva, provided that Priva “may be represented in this proceeding, at no expense to the 

government, by an attorney or other individual authorized and 

qualified to represent persons before an Immigration Court” and 

that, if Priva wished to be represented, his attorney should appear 

with him at the hearing. The same day, Priva was served with a 

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10 Opinion of the Court 20-12521

notice scheduling his hearing for June 9, 2020, and again informing Priva he may be represented by counsel. 

At the June 9, 2020, hearing, Priva appeared without counsel. The immigration judge noted that Priva was appearing pro se 

but did not inquire further into Priva’s lack of counsel. The immigration judge noted that he had asked Priva before the hearing 

commenced what language he wanted the hearing conducted in,

and Priva on the record confirmed that he wanted the hearing 

conducted in English. The immigration judge took testimony 

from Priva and confirmed that Priva understood the basis of the 

hearing. The immigration judge further confirmed that Priva 

feared being returned to Haiti based only on the threats from

people to whom he owed money. Before making his finding, the 

immigration judge asked Priva if there was “any other reason 

why [Priva] believe[d] someone might harm [him] if [he went]

back to Haiti?” In response, Priva testified “[j]ust because the 

money I owe them.” The immigration judge then found that Priva had not established a reasonable possibility he would be persecuted based on a protected ground nor a reasonable possibility he 

would be tortured if returned to Haiti. The immigration judge 

stated that his decision was a final order and that no administrative appeal was available, but he noted that Priva could petition 

for review with this Court. The immigration judge also stated 

that while he believed what Priva said, those statements did not 

constitute grounds for withholding of removal or CAT relief. Following his ruling, the immigration judge issued an order of reUSCA11 Case: 20-12521 Date Filed: 05/12/2022 Page: 10 of 33
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moval, finding that Priva had not established a reasonable probability that he would be persecuted based on a protected ground or 

a reasonable possibility he would be tortured in the country of 

removal. 

Priva filed this petition for review.

II. ANALYSIS 

In his petition, Priva contends that his due process rights 

were violated during his expedited removal proceedings. Priva 

argues that he had the right to counsel during his reasonable fear 

proceedings before the immigration judge and also argues that 

the immigration judge violated this right by failing to obtain a 

knowing and voluntary waiver of that right from Priva. Priva also argues that he need not show that he was substantially prejudiced by the violation of the right to counsel but alternatively 

contends that he has shown substantial prejudice. Priva further 

contends that he was denied a full and fair hearing because the 

immigration judge failed to provide an adequate explanation of 

the proceedings. And Priva lastly contends that the immigration 

judge erred in upholding the asylum officer’s finding that there 

was not a reasonable possibility he would be tortured if returned 

to Haiti.3 We address these arguments in turn.

3 Priva does not challenge the immigration judge’s concurrence with the asylum officer’s finding that he did not establish a reasonable fear of persecution 

based on a protected ground for withholding of removal under the INA. 

Priva has therefore abandoned any challenge to the denial of his withholding 

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12 Opinion of the Court 20-12521

A. Reasonable Fear Proceedings 

Reasonable fear proceedings are part of the expedited removal proceedings for “aliens convicted of committing aggravated felonies” set forth in 8 U.S.C. § 1228. While § 1228 does not 

mention “reasonable fear proceedings,” the Attorney General 

promulgated the regulations establishing reasonable fear proceedings—8 C.F.R. §§ 208.31 and 238.1(f)(3)—in 1999 under its authority to promulgate such regulations under § 1228(b)(4). See Regulations Concerning the Convention Against Torture, 64 Fed. Reg. 

8478, 8485 (Feb. 19, 1999).

The purpose of the “reasonable fear screening process” is 

“to provide for the fair resolution of claims both to withholding 

under [the INA], and to protection under the [CAT] without unduly disrupting the operation of” the “streamlined administrative 

removal processes for aggravated felons under” INA § 238(b) and 

for aliens subject to reinstatement of a previous removal order 

under INA § 241(a)(5). Regulations Concerning the Convention 

Against Torture, 64 Fed. Reg. at 8485. 8 C.F.R. § 238.1(b)(2) provides that removal proceedings commence upon personal service 

on the alien of a notice of intent to issue a FARO, explaining the 

charges against the alien. The alien then has the option to seek 

withholding of removal. Id. § 238.1(c)(1). If the alien seeks withholding of removal because of a fear of torture, he is referred to 

of removal claim. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 

(11th Cir. 2005).

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an asylum officer for a reasonable fear interview and determination. Id. § 208.31(a)–(c). When an alien is referred to an asylum 

officer for a reasonable fear determination, the officer “conduct[s] 

the interview in a non-adversarial manner, separate and apart 

from the general public,” where the alien “may be represented by 

counsel . . . and may present evidence . . . relevant to the possibility of persecution or torture.” Id. § 208.31(c). At the end of the 

interview, the asylum officer reviews with the alien a “summary 

of the material facts” and provides the alien with “an opportunity 

to correct errors therein.” Id. 

To succeed in establishing a reasonable fear of torture, the 

alien must establish “a reasonable possibility that he or she would 

be tortured in the country of removal.” Id. If the asylum officer 

concludes that the alien has met the reasonable fear standard, the 

officer must refer the case to an immigration judge “for full consideration” of the alien’s eligibility for withholding of removal, 

which is conducted with all procedural requirements attendant to 

removal proceedings, including appeals to the Board of Immigration Appeals. Id. § 208.31(e); see also id. § 208.16. But if an officer 

concludes that the alien does not have a reasonable fear of torture, then the alien may request that an immigration judge review 

the officer’s “negative determination.” 8 C.F.R. § 208.31(f )–(g). If 

the alien requests a review by an immigration judge, then the 

immigration judge is provided with the “record of determination, 

. . . the asylum officer’s notes, the summary of the material facts, 

and other materials upon which the determination was based.” 

Id. § 208.31(g). If the immigration judge “concurs with the asyUSCA11 Case: 20-12521 Date Filed: 05/12/2022 Page: 13 of 33
14 Opinion of the Court 20-12521

lum officer’s determination that the alien does not have a reasonable fear of . . . torture,” the alien is removed. Id. § 208.31(g)(1). 

The regulations provide that an “alien may be represented 

by counsel or an accredited representative . . ., at no expense to 

the Government,” during the reasonable fear interview before the 

asylum officer. Id. § 208.31(c). But the regulations are silent 

about any right or privilege to counsel during the immigration 

judge’s review of the asylum officer’s negative determination. 

See generally id. § 208.31(g). 

B. Right to Counsel and Substantial Prejudice 

Priva first contends that he is entitled to a new hearing before the immigration judge because he had a right to counsel in 

his reasonable fear proceedings under the Fifth Amendment to

the United States Constitution. In support of his argument, Priva 

relies on Zuniga v. Barr, 946 F.3d 464, 468–70 (9th Cir. 2019), in 

which the Ninth Circuit found that aliens subject to the expedited 

removal proceedings under 8 U.S.C. § 1228 had “a right to counsel” in “reasonable fear review proceedings,” see 8 C.F.R. 

§ 208.31. In response, the government asserts that § 1228’s plain 

language does not provide aliens with the right to counsel in reasonable fear proceedings. As discussed in Section II.A., § 1228 

contains no language on reasonable fear proceedings; nor would 

it, as the statute was enacted before regulations involving those 

types of proceedings were promulgated to conform to the CAT. 

See Regulations Concerning the Convention Against Torture, 64 

Fed. Reg. at 8485; 8 C.F.R. § 238.1. Although the regulations inUSCA11 Case: 20-12521 Date Filed: 05/12/2022 Page: 14 of 33
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volving reasonable fear screening proceedings state that an alien 

“may be represented by counsel” at the screening process’ first 

step—the interview with an asylum officer, 8 C.F.R. § 208.31(c)—

the regulations are silent on whether an alien may have counsel 

present at the second step of the screening process before the 

immigration judge, id. § 208.31(g).

That said, we need not decide whether an alien is entitled 

to counsel before an immigration judge in reasonable fear proceedings under § 1228 because, even if Priva had such a right to 

counsel, under our existing precedent, Priva must show substantial prejudice and he has failed to do so. Indeed, although

“[a]liens are entitled to due process of law in deportation hearings” under the Fifth Amendment, we have long held in this Circuit that “an alien must show substantial prejudice” to prevail “on 

a due process challenge to a deportation proceeding.” Ibrahim v. 

U.S. INS, 821 F.2d 1547, 1550 (11th Cir. 1987); see also, e.g., Indrawati v. U.S. Att’y Gen., 779 F.3d 1284, 1299 (11th Cir. 2015);

Lapaix v. U.S. Att’y Gen., 605 F.3d 1138, 1143 (11th Cir. 2010); De 

Sandoval v. U.S. Att’y Gen., 440 F.3d 1276, 1285 (11th Cir. 2006); 

Garcia v. Att’y Gen. of U.S., 329 F.3d 1217, 1222 (11th Cir. 2003); 

Mullen-Cofee v. INS, 976 F.2d 1375, 1380 (11th Cir. 1992). For 

example, in Flores-Panameno v. U.S. Att’y Gen., 913 F.3d 1036 

(11th Cir. 2019), we held that while “8 U.S.C. § 1362 provides that 

aliens have the right to retain private counsel in their removal 

proceedings . . . [and] the right to effective assistance of counsel,” 

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the alien must also show prejudice. Id. at 1040; see also Mejia 

Rodriguez v. Reno, 178 F.3d 1139, 1148 (11th Cir. 1999).

Additionally, in Frech v. U.S. Att’y Gen., 491 F.3d 1277 

(11th Cir. 2007), we held that “[w]hile deprivation of the right to 

counsel . . . in a removal proceeding would, under certain circumstances, constitute a due process violation, [the petitioner had] 

not shown that he was substantially prejudiced by any due process violation in [the] case.” Id. at 1282 (emphasis added). Similarly, in De Sandoval, we considered the petitioner’s argument 

that 8 C.F.R. § 241.8—regarding procedures for reinstatement of 

removal orders—violated her procedural due process rights because the regulation, among other things, did not “provide her 

the right . . . to be represented by counsel.” 440 F.3d at 1285. We 

concluded that “[t]o establish a procedural due process violation, 

an alien must show the government’s asserted error caused her 

substantial prejudice,” and we also concluded in De Sandoval that 

the petitioner “fail[ed] to show how the additional procedures she 

demands would have changed the result in her case.” Id. Additionally, in Mullen-Cofee, we noted that “to establish [a] due process violation from denial of right to counsel at deportation proceedings, [the] alien must establish that ‘presence of counsel 

might have affected the outcome.’” 976 F.2d at 1380 (quoting 

Cobourne v. INS, 779 F.2d 1564, 1566 (11th Cir. 1986)).

Despite this Circuit’s long-standing precedent, Priva cites

to out-of-circuit decisions supporting his argument that substantial prejudice is not required. But “under this Court’s prior-panelUSCA11 Case: 20-12521 Date Filed: 05/12/2022 Page: 16 of 33
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precedent rule, ‘a prior panel’s holding is binding on all subsequent panels unless and until it is overruled or undermined to the 

point of abrogation by the Supreme Court or by this court sitting 

en banc.’” See In re Lambrix, 776 F.3d 789, 794 (11th Cir. 2015) 

(quoting United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 

2008)). Accordingly, we are bound by this Circuit’s prior holdings 

that an alien must show that a due process challenge caused him 

or her substantial prejudice. Therefore, like other due process 

challenges to removal proceedings, including those based on an 

alien’s right to counsel, we must determine whether Priva was 

substantially prejudiced by the lack of counsel at his June 9, 2020, 

hearing before the immigration judge. 

Based on the record evidence before us, we conclude that 

Priva has not shown substantial prejudice. Under the substantial 

prejudice standard, the petitioner “must demonstrate that, in the 

absence of the alleged violations, the outcome of the proceeding 

would have been different.” Indrawati, 779 F.3d at 1299 (quoting 

Lapaix, 605 F.3d at 1143). Priva contends that he was substantially prejudiced by his lack of counsel at the hearing before the immigration judge in his reasonable fear proceedings in several 

ways. He first argues that he was “deprived . . . of his opportunity 

to apply for relief under the [CAT], which was likely to be granted, based on the fact that he has a reasonable fear of torture due 

to death threats by senior government officials and police officers.” Priva further contends that: (1) the immigration judge failed 

to distinguish between the forms of relief for withholding of reUSCA11 Case: 20-12521 Date Filed: 05/12/2022 Page: 17 of 33
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moval under the INA, which requires applicants to establish persecution or torture based on a protected ground, and for CAT, 

which does not require torture to be based on a protected 

ground; and (2) if Priva had counsel at the hearing, the immigration judge would have understood “the difference” between the 

two standards. 

We conclude that these arguments lack merit. Reviewing 

the hearing transcript, the immigration judge specifically stated, “I 

find that you’ve not established a reasonable possibility that you 

would be persecuted on the basis of a protected ground, or

there’s . . . not a reasonable possibility that you would be tortured 

if you return to Haiti.” The record evidence therefore shows that 

the immigration judge did not make his finding on torture based 

on a protected ground, that is, those grounds set forth for withholding of removal claims under the INA. Nor does Priva point 

to anything else in the record suggesting that the immigration 

judge improperly conflated the two standards. Indeed, the record 

evidence shows that Priva had the opportunity to apply for CAT 

relief (and did so) and that the asylum officer asked Priva questions related to CAT relief during the several reasonable fear interviews. And Priva was represented by counsel at each of those 

reasonable fear interviews before the asylum officer. 

Priva next argues that he was substantially prejudiced “because it is questionable whether the [immigration judge] had read 

the record prepared by the [asylum officer] before the proceedings.” Priva speculates that the immigration judge did not know 

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the “material facts” of his case because the judge, when referencing the “various people inside of Haiti . . . that [Priva] owed money to,” did not specifically mention they were police officers or 

government officials. We conclude that there is nothing in the 

record suggesting that the immigration judge did not review the 

record before him in making his decision as to Priva’s CAT claim.

Priva further contends that neither the asylum officer nor 

the immigration judge inquired into country conditions, which 

Priva claims was required under 8 C.F.R. § 208.30(e)(3). Priva asserts that, if he had counsel before the immigration judge, “the 

obvious flaws would undoubtedly have been drawn to the IJ’s attention and the outcome would have been different.” But Priva 

did have counsel before the asylum officer in each of his reasonable fear interviews, and Priva did not present evidence of country 

conditions in Haiti to the officer. Priva does not explain why he 

failed to present country condition evidence to the asylum officer 

during any of these reasonable fear interviews where he was represented by counsel. Also, the relevant regulation, 8 C.F.R. 

§ 208.31(g), does not indicate that the immigration judge would 

have to review new evidence that Priva failed to present to the 

asylum officer during the reasonable fear interviews. In other 

words, Priva has failed to show how the presence of counsel at 

the hearing before the immigration judge to present country conUSCA11 Case: 20-12521 Date Filed: 05/12/2022 Page: 19 of 33
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dition evidence would have changed the proceedings’ outcome.4 

See Indrawati, 779 F.3d at 1299.

We therefore find no merit in Priva’s constitutional claims 

because he has not shown that any purported violations caused 

him substantial prejudice. 

C. Explanation of the Proceedings 

 Priva also briefly argues that he was denied a “full and fair 

hearing” before the immigration judge because the judge “failed 

to provide an adequate explanation of the procedures, including 

what [he] had to prove to establish his basis for the CAT relief, 

and to inquire into [the] basis for the CAT relief.” We disagree.

 Due process of law in deportation proceedings “is satisfied 

only by a full and fair hearing,” but the “alien must show substantial prejudice.” Ibrahim, 821 F.2d at 1550. That said, there is no 

indication in the record that Priva did not understand the proceedings. At the hearing, the immigration judge asked Priva before the hearing commenced what language he wanted the hearing conducted in, and Priva on the record confirmed that he 

wanted the hearing conducted in English. The immigration judge 

4 As explained in Section II.D, we conclude that, under the substantial evidence standard, see Nasrallah v. Barr, 140 S. Ct. 1683, 1692 (2020), the immigration judge did not err in upholding the asylum officer’s negative reasonable fear determination on Priva’s CAT claim because substantial evidence in 

the administrative record supports that determination.

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20-12521 Opinion of the Court 21

then stated that Priva had “already been ordered to be removed 

from the United States,” that “an asylum officer concluded that 

[he did] not have a reasonable fear of persecution or torture,” and 

that Priva had “requested that the asylum officer’s decision be reviewed.” The immigration judge then asked Priva if that was his 

“understanding of why [they were there],” to which Priva replied, 

“Yes. Yes, sir.” 

Priva also received written documents explaining the process of the hearing and that the immigration judge would be determining whether he agreed with “the [asylum officer’s] determination that [Priva] d[id] not have a reasonable fear of persecution or torture.” Additionally, Priva has not explained or shown 

how the outcome would have been different if he had “been 

properly informed.” Indeed, Priva has not identified how he 

would have presented his case differently before the immigration 

judge. We therefore conclude that this argument lacks merit.

D. Whether Priva Failed to Establish a Reasonable Fear of Torture in Haiti 

Finally, Priva contends that the immigration judge erred in 

upholding the asylum officer’s finding that there was “no reasonable fear of torture established” as to his claim for CAT relief. We 

disagree. Although we generally lack jurisdiction to review factual challenges to a final order of removal against an alien who is 

removable for having committed an aggravated felony, “we have 

jurisdiction to review factual challenges to an order denying protection under the [CAT] to that same alien.” Farah v. U.S. Att’y 

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22 Opinion of the Court 20-12521

Gen., 12 F.4th 1312, 1327 (11th Cir. 2021). In reviewing a factual 

challenge to the denial of CAT relief, we apply the substantial evidence standard of review.5 Nasrallah v. Barr, 140 S. Ct. 1683, 

1692 (2020). Under the substantial evidence standard, which is 

highly deferential, the immigration judge’s “findings of fact are 

conclusive unless any reasonable adjudicator would be compelled 

to conclude to the contrary.” Id. (quoting 8 U.S.C. 

§ 1252(b)(4)(B)); accord Antipova v. U.S. Att’y Gen., 392 F.3d 

1259, 1261 (11th Cir. 2004) (“Under this highly deferential standard of review, the IJ’s decision must be deferred to as supported 

by substantial evidence, unless the evidence compels a reasonable 

fact finder to find otherwise.”). Because the standard is highly 

deferential, we will reverse an agency’s decision only if the record 

compels a contrary finding. Antipova, 392 F.3d at 1261. We also 

review the record evidence in the light most favorable to the 

agency’s decision and draw all reasonable inferences in favor of 

that decision. Silva v U.S. Att’y Gen., 448 F.3d 1229, 1236 (11th 

Cir. 2006). 

5 We have not decided what standard of review applies to an immigration 

judge’s negative reasonable fear determination. The government argues 

that, in the case of an immigration judge’s concurrence with an asylum officer’s negative reasonable fear determination, this Court should apply the

more deferential “facially legitimate and bona fide reason” standard of review set forth in Kleindienst v. Mandel, 408 U.S. 753 (1972), instead of the 

more demanding substantial evidence standard. We need not decide which 

standard of review applies because, even if we review for substantial evidence, the record does not compel an outcome in Priva’s favor. 

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20-12521 Opinion of the Court 23

As a general matter, to qualify for CAT relief, “an alien 

must establish that he will more likely than not be tortured if removed to his country.” Farah, 12 F.4th at 1327. In the context of 

the screening process for CAT claims raised in reasonable fear 

proceedings, however, “[t]he alien shall be determined to have a 

reasonable fear of . . . torture if the alien establishes a reasonable 

possibility that he or she would be . . . tortured in the country of 

removal.” See 8 C.F.R. § 208.31(c). The applicant bears the burden of proof for establishing entitlement to CAT relief. See 

Reyes-Sanchez v. U.S. Att’y Gen., 369 F.3d 1239, 1242 (11th Cir. 

2004); Lingeswaran v. U.S. Att’y Gen., 969 F.3d 1278, 1293 (11th 

Cir. 2020).

In the CAT context, “[t]orture must be ‘inflicted by, or at 

the instigation of, or with the consent or acquiescence of, a public 

official acting in an official capacity or other person acting in an 

official capacity.’” Farah, 12 F.4th at 1327 (quoting 8 C.F.R. 

§ 1208.18(a)(1)); accord Lingeswaran, 969 F.3d at 1293; see also 

United States v. Belfast, 611 F.3d 783, 804, 808 (11th Cir. 2010) 

(explaining that, under CAT, “there is no distinction between the 

meaning of the phrases ‘under the color of law’ and in ‘an official 

capacity’”). “Acquiescence ‘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.’” Lingeswaran, 969 F.3d at 1293 (quoting 

8 C.F.R. § 208.1[8](a)(7)).

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24 Opinion of the Court 20-12521

We conclude that Priva’s claim fails under the substantial 

evidence standard. See Antipova, 392 F.3d at 1261. The record 

evidence does not compel a finding that Priva established a reasonable possibility of torture at the instigation of, or with the consent of, government officials acting in an official capacity. See 8 

C.F.R. § 208.18(a)(1)); Antipova, 392 F.3d at 1261. While the asylum officer noted that some individuals threatening Priva because 

he owed them money for failing to obtain fraudulent visas to the 

United States were Haitian “police officers and other public officials,” the asylum officer found that Priva had failed to provide 

“specific and persuasive evidence to indicate that [those] individuals acted or would act under the color of law,” as Priva’s testimony “indicate[d] that the police and other public officials that made 

threats toward [him] were acting as private individuals.” The asylum officer also noted that Priva testified those individuals “used 

Facebook to locate his family and friends to relay their threats” 

and would “be able to locate him because people deported 

through Haiti are on the news.” But because those “tools” were 

not “only at the disposal of the police or public officials,” the asylum officer found no indication the individuals would use their 

official positions to harm Priva. 

The officer further concluded that Priva failed to show a 

public official would consent or acquiesce to his future harm. In

noting Priva’s testimony that Haitian police were corrupt and that 

reports to a higher officer or official could make things “worse,” 

the officer determined that Priva failed to provide specific eviUSCA11 Case: 20-12521 Date Filed: 05/12/2022 Page: 24 of 33
20-12521 Opinion of the Court 25

dence in support of his belief. For example, Priva had never reported the threats to the Haitian police and had never reported a 

general crime for which the police refused to help him. And the 

officer noted that “Jon,” the former police officer who threatened 

Priva, had been fired by the Haitian police department for an unlawful killing, suggesting that the Haitian police were “willing to 

take action against their own officers.” The immigration judge 

reviewed the asylum officer’s findings and similarly concluded 

that, as to Priva’s application for CAT relief, there was not a reasonable possibility that Priva would be tortured if returned to 

Haiti. 

Under our highly deferential review standard, we conclude 

that substantial evidence supports the asylum officer’s and immigration judge’s determinations. While Priva testified that some 

individuals threatening him were Haitian police officers or public 

officials, Priva did not offer any examples to show that those officers and officials were threatening him in their official capacities

or under the color of law. Rather, Priva testified that the individuals were threatening him through Facebook and searching for 

him via Google or by watching the news in Haiti. And during his 

interview, Priva stated that he did not know if any of the 100 people he owed money to had killed other individuals. A reasonable 

fact finder therefore could conclude that substantial evidence

supported the determination that those officers and officials were 

not acting in their official capacities. 

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26 Opinion of the Court 20-12521

Additionally, although Priva generally testified that the

Haitian police were corrupt and there were high levels of violence 

in Haiti, as well as speculated that it could be worse for him to report the threats, Priva admitted that he had never reported a 

crime to the Haitian police for which they refused to help him. 

Priva further provided an example—“Jon”—in which a former 

police officer was fired from the police department following an 

unlawful killing, evidence suggesting that the Haitian police acts 

against its officers who commit unlawful acts instead of acquiescing to the unlawful conduct. Cf. Reyes-Sanchez, 369 F.3d at 1243. 

Thus, there is substantial evidence to support the finding that 

Haitian public officials would not consent or acquiesce to Priva’s 

future harm if he reported the threats he received.6 

We thus conclude that the immigration judge reasonably 

found that Priva’s assertions failed to establish his torture claim 

and the record does not compel a contrary finding. We thus further conclude that substantial evidence supports the asylum officer’s and immigration judge’s negative reasonable fear determination on Priva’s claim for CAT relief.

III. CONCLUSION 

For all these reasons, we deny Priva’s petition.

6 While Priva contends that the asylum officer and immigration judge ignored the country conditions in Haiti, Priva had the burden of proof to establish entitlement to relief under the CAT, see Reyes-Sanchez, 369 F.3d at 

1242, and he (and his counsel) failed to offer reports on Haiti’s conditions at 

any stage of the reasonable fear proceedings.

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20-12521 Opinion of the Court 27

PETITION DENIED. 

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20-12521 WILSON, J., Dissenting 1

WILSON, Circuit Judge, dissenting:

This appeal provides two questions that have yet to be directly answered in a published opinion in the Eleventh Circuit: (1)

whether there is a statutory right to counsel in a reasonable fear 

review proceeding before an Immigration Judge (IJ); and (2) 

whether a petitioner alleging the violation of the statutory right to 

counsel must show that the purported error caused substantial 

prejudice. Upon review, and with the benefit of oral argument, I 

agree with Priva that there is a statutory right to counsel in reasonable fear review proceeding before an IJ. I further agree with Priva 

that where a noncitizen has been denied the right to counsel in an 

immigration proceeding, he or she is not required to demonstrate 

substantial prejudice to obtain relief. I would therefore vacate the 

decision of the IJ for the following reasons. 

I.

The majority contends that it need not address whether a 

petitioner has a statutory right to counsel before an IJ during a reasonable fear review proceeding provided for in 8 C.F.R. § 208.31(g). 

This question, however, warrants review to clarify noncitizens 

rights during a reasonable fear review proceeding. I agree with 

Priva that during such a proceeding there is indeed a statutory right 

to counsel which stems from the Fifth Amendment as explained by 

the Ninth Circuit in Zuniga v. Barr, 946 F.3d 464, 469–70 (9th Cir. 

2019) (per curiam) (holding that the expedited removal statute 

clearly “contemplates a right to counsel in removal proceedings initiated under 8 U.S.C. § 1228, which include reasonable fear review 

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2 WILSON, J., Dissenting 20-12521

proceedings”). I find the opinion highly persuasive and would 

adopt its statutory interpretation and reasoning in full. 

Congress has provided that in “any removal proceedings before an [IJ],” a noncitizen “shall have the privilege of being represented” by counsel. 8 U.S.C. § 1362. Section 1228, which governs 

the implementation of expedited removal of noncitizens, provides 

that reasonable effort shall be made to ensure a noncitizen’s access

to counsel and right to counsel under § 1362 are not impaired. Id.

§ 1228(a)(2). Furthermore, § 1228(b) explicitly provides that a 

noncitizen subject to removal proceedings “shall have the privilege 

of being represented” by counsel. Id. § 1228(b)(4)(B). 

Although the legal provisions requiring the government to 

conduct reasonable fear review proceedings are set forth in regulations, not in § 1228 itself, those regulations were promulgated pursuant to the Attorney General’s authority under § 1228 and are thus 

part of expedited removal proceedings. Regulations Concerning 

the Convention Against Torture, 64 Fed. Reg. 8478, 8493–94 (Feb. 

19, 1999) (citing Immigration and Nationality Act § 238(b), 8. 

U.S.C. § 1228 as the source of authority for regulations regarding 

expedited removal proceedings and reasonable fear of persecution 

or torture determinations). As a result, the reasonable fear proceedings to which Priva was subject “are in turn part of those expedited removal proceedings” provided for by § 1228(b). Zuniga,

946 F.3d at 468. 

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20-12521 WILSON, J., Dissenting 3

II.

The majority further contends that a petitioner who demonstrates any procedural due process violation must nevertheless 

show the violation caused substantial prejudice to obtain relief. 

This interpretation is too broad. Especially where Priva raises a 

question of first impression before us which has resulted in a circuit

split: whether the specific procedural violation of the denial of 

counsel requires a showing of prejudice. 

I agree with Priva that a petitioner need not show prejudice 

or substantial prejudice where he or she demonstrates a due process claim specifically relating to the denial of the statutory right to 

counsel. As provided by the majority, we have required a showing 

of substantial prejudice when confronted with a variety of minor 

procedural due process claims. See, e.g., Indrawati v. U.S. Att’y 

Gen., 779 F.3d 1284, 1299–1300 (11th Cir. 2015) (finding no due 

process violation on claim that IJ impermissibly admitted and relied 

on evidence); Lapaix v. U.S. Att’y Gen., 605 F.3d 1138, 1144 (11th 

Cir. 2010) (per curiam) (finding no due process violation on claim 

that IJ erred in considering certain evidence where petitioner did 

not provide certain testimony); De Sandoval v. U.S. Att’y Gen., 440 

F.3d 1276, 1285–86 (11th Cir. 2006) (finding no due process violation where petitioner admitted all necessary facts to warrant reinstatement of existing removal order and procedure provided under 

statute did not afford her an appearance before an IJ); Ibrahim v. 

INS, 821 F.2d 1547, 1550 (11th Cir. 1987) (finding no due process 

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4 WILSON, J., Dissenting 20-12521

violation where petitioner was absent from his own deportation 

hearing). When confronted with a more salient due process claim 

alleging ineffective assistance of counsel claim, we require a slightly 

different showing of: (1) prejudice; and (2) counsel’s deficient performance. See, e.g., Flores-Panameno v. U.S. Att’y Gen., 913 F.3d 

1036, 1040 (11th Cir. 2019). The instances of procedural due process violations above, however, are distinctly different from the 

procedural due process violation arising from the denial of the statutory right to counsel. 

Although we have touched upon due process claims implicating the right to counsel, we have not directly decided whether a 

petitioner who was improperly denied a statutory right to counsel 

in an immigration proceeding must demonstrate that the denial resulted in either prejudice or substantial prejudice. Frech v. U.S. 

Att’y Gen., 491 F.3d 1277, 1281–82 (11th Cir. 2007) (finding no due 

process violation where petitioner argued that IJ’s denial of a 

change of venue violated his right to counsel even though petitioner discharged attorney weeks before the final merits hearing); 

Cobourne v. INS, 779 F.2d 1564, 1566 (11th Cir. 1986) (per curiam)

(finding no due process violation where the petitioner voluntarily 

and knowingly waived his right to counsel). This case presents us 

with an opportunity to clearly address this question. 

The circuits are split on the question of whether a petitioner 

must show prejudice to prevail on a claim that the statutory right 

to counsel was denied. Five circuits recognize that representation 

by counsel in immigration proceedings is a statutory right of such 

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20-12521 WILSON, J., Dissenting 5

significance that a denial of the right requires no showing of prejudice due to the fundamental importance of the right. MontesLopez v. Holder, 694 F.3d 1085, 1092 (9th Cir. 2012) (“[D]enial of 

counsel more fundamentally affects the whole of a proceeding than 

ineffective assistance of counsel . . . . [T]he absence of counsel can 

change [the noncitizen’s] strategic decisions, prevent him or her 

from making potentially-meritorious legal arguments, and limit 

the evidence the [noncitizen] is able to include in the record.”); 

Leslie v. U.S. Att’y Gen., 611 F.3d 171, 181 (3d Cir. 2010) (“The 

right to counsel is a particularly important procedural safeguard 

because of the grave consequences of removal.”); Castaneda-Delgado v. INS, 525 F.2d 1295, 1302 (7th Cir. 1975) (“When no lawyer 

appears to represent the defendant . . . there is no room for nice 

calculations as to the amount of prejudice flowing from the denial.”) (internal quotation marks omitted); Montilla v. INS, 926 

F.2d 162, 169 (2d Cir. 1991); Cheung v. INS, 418 F.2d 460, 464 (D.C. 

Cir. 1969).

In contrast, four circuits require a petitioner to show prejudice when alleging a due process violation related to the denial of 

counsel and do not distinguish between Fifth Amendment procedural due process claims and statutory right to counsel claims. 

Njoroge v. Holder, 753 F.3d 809, 812 (8th Cir. 2014); Ogbemudia 

v. INS, 988 F.2d 595, 598 (5th Cir. 1993); Michelson v. INS, 897 F.2d 

465, 468 (10th Cir. 1990); Farrokhi v. INS, 900 F.2d 697, 702 (4th 

Cir. 1990). “Instead, they examine alleged violations of the right to 

counsel more generically as a matter of procedural due process, 

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6 WILSON, J., Dissenting 20-12521

thereby failing to recognize the distinctive nature of the statutory 

right to counsel.” Hernandez Lara v. Barr, 962 F.3d 45, 59 (1st Cir. 

2020) (Lipez, J., concurring) (providing that the First Circuit should 

adopt the majority view but not deciding the issue). 

I would join the majority of circuits in concluding that no 

showing of prejudice is required when a petitioner establishes the

denial of the statutory right to counsel. The fundamental importance of the right to counsel, even where statutory, is too great. 

Because I would find that Priva was entitled to such a right 

throughout his reasonable fear proceedings under the reasoning in 

Zuniga and that Priva did not waive this right before the IJ, I would 

extend Priva relief because he need not show substantial prejudice 

or prejudice to obtain relief. 

For the reasons herein, I respectfully dissent. 

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