2015 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-16-2015

Andre Dacres v. Attorney General United States

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"Andre Dacres v. Attorney General United States" (2015). 2015 Decisions. Paper 626.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 14-4498

___________

ANDRE ANTHONY DACRES,

 Petitioner

v.

ATTORNEY GENERAL UNITED

STATES OF AMERICA, 

 Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A042-255-866)

Immigration Judge: Honorable Andrew R. Arthur

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

June 12, 2015

Before: AMBRO, VANASKIE and SLOVITER, Circuit Judges

(Opinion filed: June 16, 2015)

___________

OPINION*

___________

PER CURIAM

 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

Andre Dacres petitions for review of the Board of Immigration Appeals’ (“BIA”) 

final order of removal. We will dismiss the petition in part and deny it in part.

I.

Dacres, a 30-year-old native and citizen of Jamaica, entered the United States as a 

lawful permanent resident in 1989. In 2011, a Pennsylvania state court convicted him of 

manufacturing, delivering, or possessing with intent to manufacture or deliver heroin, in 

violation of 35 Pa. Stat. Ann. § 780-113(a)(30). Dacres was sentenced to a minimum 

prison term of 11 months and 15 days, and a maximum prison term of 23 months. 

In light of that conviction, the Department of Homeland Security charged Dacres 

with being removable for having been convicted of an aggravated felony, see 8 U.S.C. 

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

Dacres, through counsel, appeared before an Immigration Judge (“IJ”) and denied the 

charges of removability. The IJ ultimately sustained those charges and Dacres applied 

for withholding of removal and relief under the Convention Against Torture (“CAT”). In 

support of his application, Dacres alleged that he feared harm at the hands of the Shower 

Posse (a gang in Jamaica that, according to Dacres, was affiliated with the Jamaican 

government) and enemies of his father, who had been a Shower Posse member.

In March 2014, after holding a merits hearing, the IJ denied the application. The 

IJ concluded that Dacres’s crime constituted a “particularly serious crime” under 

8 U.S.C. § 1231(b)(3)(B)(ii), thereby rendering Dacres ineligible for withholding of 
3

removal. After reviewing the record evidence at length, (see A.R. at 164-69), the IJ also 

concluded that Dacres’s CAT claim failed on the merits.

In addressing Dacres’s CAT claim, the IJ explained that, while there remained 

significant violence and corruption in Jamaica, Dacres had failed to show that any harm 

he might face in Jamaica at the hands of the Shower Posse and/or his father’s enemies 

would be “inflicted by or at the instigation of or with the consent or acquiescence of or 

with the willful blindness of a public official or other person acting in an official 

capacity.” (Id. at 169.) The IJ found, inter alia, that the Jamaican government had made 

reforms to address “corruption and collusion between police officers and criminals in that 

country.” (Id. at 166.) The IJ also highlighted the “significant efforts that the 

government of Jamaica exerted against [the Shower Posse] in May of 2010,” id. at 169, 

and determined that 

any harm inflicted on [Dacres] by a corrupt police officer 

working at the behest of a criminal organization would be the 

action of an isolated rogue agent engaging in extra-judicial 

acts of brutality, which are not only a contravention of 

Jamaica’s laws and policies, but are committed despite 

authorities’ best efforts to root out such misconduct and 

therefore not torturous as that term is defined in the 

regulations o[r] case law.

(Id.) 

Dacres, still represented by counsel, appealed the IJ’s decision to the BIA. In 

October 2014, the BIA dismissed the appeal, concluding that Dacres’s various arguments 

lacked merit. Among other things, the BIA rejected Dacres’s challenge to the denial of 
4

his CAT claim, concluding that there was no reason to disturb the IJ’s determination that 

Dacres “did not demonstrate that it is more likely than not that he would suffer abuse 

amounting to torture, within the meaning of 8 C.F.R. § 1208.18, by or with the consent or 

acquiescence of public officials acting in their official capacity, if he were removed to 

Jamaica.” (Id. at 5.)

Dacres, now proceeding pro se, seeks our review of the agency’s decision.

II.

We generally have jurisdiction to review final orders of removal. See 8 U.S.C. 

§ 1252(a)(1). But where, as here, the alien is found to be removable for having been 

convicted of an aggravated felony and a controlled substance offense, our jurisdiction is 

limited to reviewing constitutional claims and questions of law. See 8 U.S.C. 

§ 1252(a)(2)(C)-(D); Borrome v. Att’y Gen., 687 F.3d 150, 154 (3d Cir. 2012). We 

review such claims and questions under a de novo standard. See Mudric v. Att’y Gen., 

469 F.3d 94, 97 (3d Cir. 2006).

Dacres’s first claim appears to contend that the IJ’s decision is inconsistent with a 

2013 decision issued by the Immigration Court in Cleveland, Ohio.1 In that case, an alien 

apparently was granted CAT relief based on his claim that he feared harm at the hands of 

the Shower Posse. Dacres attempted to rely on that case in his appeal, but the BIA 

 

1 The administrative record here contains only a news article about the Cleveland case. 

The article, published by the University of Chicago Law School, briefly describes the 

case but does not identify the name of the alien. 
5

concluded that there was no reason to disturb the IJ’s denial of CAT relief in his case.

Although a fear of the Shower Posse was at issue in both cases, Dacres has not 

shown (or even attempted to show) that the two cases are materially similar. If anything, 

it appears that the alien’s CAT claim in the Cleveland case was much stronger than 

Dacres’s claim. Whereas Dacres left Jamaica as a young child more than 25 years ago, it 

appears that the alien in the Cleveland case had been captured by the Shower Posse in 

Jamaica in 2003 and narrowly escaped being executed by that group before fleeing to the 

United States. Accordingly, Dacres cannot show that the agency committed legal error 

by not granting him relief based on the Cleveland case. 

Dacres’s second claim is that the IJ did not make a complete record of Dacres’s 

merits hearing. During the hearing, the testimony of Dacres’s sister was inadvertently 

not tape recorded. Upon realizing the error, the IJ recounted the sister’s testimony on the 

record. Dacres’s counsel stated that this recounting was “perfect” except for the issue of 

whether there was a conflict in the sister’s testimony regarding the date of a particular 

event. The IJ then stated that he would give the sister the benefit of the doubt and find 

that there was no contradiction.

Pursuant to 8 C.F.R. § 1240.9, the hearing before the IJ “shall be recorded 

verbatim.” Although that did not happen here, “a mere failure of transcription, by itself, 

does not rise to a due process violation.” Garza-Moreno v. Gonzales, 489 F.3d 239, 241 

(6th Cir. 2007) (quotation marks omitted); Kheireddine v. Gonzales, 427 F.3d 80, 85 (1st 

Cir. 2005) (same); see McLeod v. INS, 802 F.2d 89, 95 (3d Cir. 1986) (concluding that 
6

transcription errors in the petitioner’s case did not warrant relief because those errors did 

not “come at a critical juncture in the transcript” and petitioner “had a fair review of his 

claims for relief from deportation”). The BIA concluded that Dacres did not show that he 

was prejudiced by the transcription error, and he has done nothing to call that conclusion 

into question.

Dacres next claims that he should have been granted CAT relief. To the extent 

that he takes issue with the agency’s factual findings, that aspect of his argument is 

outside the scope of our review and must be dismissed. See 8 U.S.C. § 1252(a)(2)(C)-

(D). On the other hand, to the extent that his argument could be construed as challenging 

the agency’s application of law to the undisputed facts of his CAT claim, we have 

jurisdiction over that argument. See Singh v. Gonzales, 432 F.3d 533, 541 (3d Cir. 

2006). Nevertheless, Dacres has not demonstrated that the BIA erred in upholding the 

denial of CAT relief. Contrary to his assertions, we are not persuaded that the IJ failed to 

consider certain evidence or “adequately implement” the willful blindness standard 

governing CAT claims.

Lastly, Dacres argues that the IJ erred by failing to grant his motion for a 

continuance that was filed about two weeks before the merits hearing. To the extent that 

Dacres merely challenges the IJ’s discretionary decision to deny a continuance, we lack 

jurisdiction over that challenge. See Rachak v. Att’y Gen., 734 F.3d 214, 216-17 (3d Cir. 

2013). However, to the extent that his claim could be construed as alleging that the 

denial of a continuance violated his due process rights, we have jurisdiction to review 
7

that claim. See Hoxha v. Holder, 559 F.3d 157, 163 n.5 (3d Cir. 2009). Nevertheless, as 

explained below, this due process claim lacks merit. 

In his appeal to the BIA, Dacres argued that the denial of a continuance prevented 

him from enlisting the help of an expert witness. In considering this claim, the BIA noted 

that Dacres “had previously requested and was granted several continuances to seek 

counsel and investigate his relief.” (A.R. at 6.) The BIA further noted that Dacres “ha[d] 

not submitted an expert witness report or sufficiently explained how a report may have 

altered the outcome of the [IJ’s] decision.” (Id.) As a result, the BIA concluded that the 

IJ’s denial of a continuance did not violate Dacres’s due process rights. We find no error 

in the BIA’s decision. See Khan v. Att’y Gen., 448 F.3d 226, 236 (3d Cir. 2006) (stating 

that “[d]ue process challenges to deportation proceedings require an initial showing of 

substantial prejudice”) (alteration in original, quotation marks omitted).

In light of the above, we will dismiss Dacres’s petition for review in part and deny 

it in part.2

 

2 The Government states that Dacres was removed from the United States on January 29, 

2015. At that time, Dacres had a motion for a stay of removal pending before this Court. 

Despite the pendency of that stay motion, the Government informed us only after he had 

been removed. It has not explained why he was removed while his stay motion was 

pending. Although the Government’s actions in this case do not affect the disposition of 

Dacres’s petition for review, we are nevertheless troubled by them, and we write here to 

stress our opposition to the removal of an alien before we have had the opportunity to 

consider his or her stay motion.