NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_______________ No. 2 2

- 3346

_______________ W.R.R. , Petitioner

v. ATTORNEY GENER AL OF T HE UNI TED STATES OF AMERICA

_______________ On Petition for Review of a Decision of the Board of Immigrati on Appeals ( Agency N o . A20 7-054-101) Immigration Judge : Mirlande Tadal

_______________ Submitted Under Third Circui t L.A.R. 34.1(a)

on J anuary 1 9, 202 4 Before: JORDAN, BIBAS, and AMBRO, Circuit Judges

(Filed: January 23, 202 4 )

_______________ OPINION *

_______________

* This disposition is not an opinion of the full Court and , under I.O.P. 5.7 , is not binding precedent.2

BIBAS, Circuit Judge

. Petitioner W.R.R. is a native and citizen of the Dominican Republic. After arriv ing here illegally as a toddler, Petitioner got Deferred Action for Childhood Arrivals status

. As an adult, Petitioner pleaded guilty to a felony after stealing a car and fleeing from the police

. N.J. Stat. Ann. § 2C:29

- 2 (b)

. For th at crime, Petitioner was sentenced to eight years’ imprisonment. When t he government sought deport ation , Petitioner admitted removability b ut sought asylum, withholding of removal, and protection under the Convention Against Torture, claiming a fear of gang violence. Petition er a lso later testified about fear ing persecution as a bisexual person . The immigration judge denied all relief

. She held that b ecause the latest conviction counted as a “particularly serious crime ,” Petitioner was ineligible for asylum or withholding. 8 U.S.C. §§ 1158(b)(2)(A)(ii), 1231(b)(3)(B)(ii). And no evidence suggested that gang members were more likely than not to torture Petitioner based on sexual orientation or that the Dominican government would acquiesce in any such torture. So the immigration judge ordered removal

. Petitioner appealed to the Board of Immigration Appeals. In appl ying for relief , P etitioner had said he w as male. But on appeal, P etitioner moved to remand the Convention

c laim, alleging for the first time fear based on being not only bisexual , but also both a man and a woman

. In support, P etitioner submitted hundreds of pages of supposedly previously unavailable evidence about P etitioner ’s gender identity and sexual orienta tion. But P etitioner never asked for another hearing or to testify again.3

The Board dismissed the appeal from the denial of asylum and withholding based on
P etitioner’s conviction for a particularly serious crime. But it remanded the Convention claim based on sexual orientation and gender identity. On remand, the immigration judge denied relief. Though there was record evidence of discrimination against gay and transgender people in general, she saw no specific evidence that P etitioner personally would be t ortured, let alone proof that it was more likely than not to happen. The judge then denied the motion to reconsider, the Board dismissed both appeals, and we denied the petition for review. W.R.R. v. Att’y Gen. , No. 22

- 1142, 2023 WL 2770946, at *1 (Apr. 4, 2023)

. Petitioner also moved to reopen the Board’s proceedings. In support, P etitioner submitted hundreds of pages of additional documents that were allegedly material and unavailable before. The documents included reports by the U.S. State Depart ment, academics, Amnesty International, and United Nations committees, as well as news articles and survey data. And in a supplemental motion to reopen, P etitioner alleged that a recent administrative decision required reconsidering whether the felony conv iction counted as a particularly serious crime . Petitioner blam ed that crime on mental illness. The Board denied relief, finding no proof that th e new documents or allegations w ere previously unavailable. Because this case did not involve a remand for corr oboration, the Board found no need to hold a supplemental hearing. And it held that the new administrative decision did not require reopening cases to consider mental health. These are the rulings that we review today.4

We review the Board’s denial of these two motions to reopen “und er a highly deferential abuse of discretion standard.” Alzaarir v. Att’y Gen. , 639 F.3d 86, 89 (3d Cir. 2011) (per curiam)

. The Board properly denied relief. First, P etitioner’s supplemental evidence was not new. Much of it preda ted the August 2020 hearing, including the news articles and reports by Amnesty International. Though the academic, United Nations, and some other reports are dated later, they rest on pre

- 2020

sources. The 2020 and 2021 U.S. State Department reports simply repeat what the State Department had already said in its 2019 report

. And al though there was a post

- hearing survey from 2021, it reached the same findings as a 2016 article and a 2017 report. In other words, t he substance of the evidence was available before 2020. Second, the supplemental evidence was not material either. Like the earlier evidence, the new documents discussed conditions in the Dominican Republic generally, not how
P etitioner specifically would fare there. It d id nothing to cu re the fatal evidentiary gap: the lack of anything tying the generalities to P etitioner personally. We upheld this finding the first time around , and nothing moves the needle here. Third, P etitioner had no right to a supplemental hearing. Petitioner says o ur precedent required a supplemental hearing on remand, particularly because P etitioner did not come out as nonbinary until after the August 2020 hearing. But the case P etitioner cite s is inapt.
In Abdulai v. Ashcroft , we held that when the Board remands a case to let an alien corroborate his claim, the Board must give notice and time to gather corroboration . 239 F.3d 542, 554

– 55 (3d Cir. 2001). But the Board did not remand th is case for corroboration or any5

more factfinding. Plus, we have already held that the Board’s remand did not require a new hearing and that P etitioner has already had a chance to testify. Finally, the new administrative decision does not apply. In 2022 , the Attorney General ruled that immigration judges “ may c onsider a[n] [alien’s] mental health in determining whether” someone convicted of a particularly serious crime poses a danger. In re B

- Z

- R

- , 28 I. & N. Dec. 563, 567 (Att’y Gen. 2022) (emphasis added). But that ruling is permissive, not mandatory : judges “ may” consider an alien’s mental health but need not. Id. That case is also prospective, applying only “[g]oing forward.” Id. It does not support upsetting the removal order already entered. So w e will deny the petition for review

.