Evelyn B. Burke v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 05-3726
________________
EVELYN B. BURKE,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order
of the Board of Immigration Appeals
Agency No. A19 473 594
on June 18, 2003
Immigration Judge: Walt A. Durling
_______________________________________
Submitted Under Third Circuit LAR 34.1(a)
November 1, 2006
Before: SLOVITER, MCKEE AND AMBRO, CIRCUIT JUDGES
(Filed: March 2, 2007)
_______________________
OPINION
_______________________
PER CURIAM
Evelyn B. Burke petitions for review of an order of the Board of Immigration

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Appeals (BIA), affirming the decision of an Immigration Judge (IJ) that denied him relief
under Article 3 of the United Nations Convention Against Torture (CAT).
Burke is a native and citizen of Jamaica. On January 9, 1979, an IJ found he was
deportable for overstaying his visa, but granted him voluntary departure. Burke was
arrested in August 1979 on a bribery charge. While in detention, he was recruited by an
officer of the Immigration and Naturalization Service (INS), who sought and obtained
Burke’s cooperation with the INS to provide information regarding criminal activities of
“several illegal Jamaican Rastafarians, and Jamaican political enforcers from the two
major Jamaican political parties, drug-traffickers, and other gang-members sought by the
police for various levels of criminal activities including murder.” Informal Brief at 4
(emphasis in original). In exchange, the INS arranged for Burke’s bond to be reduced
from $10,000 to $5,000, and allowed him 30 days’ voluntary departure, during which
time his U.S. citizen wife filed an I-130 petition.
In the meantime, Burke committed several criminal offenses, including some
controlled substance violations. On March 19, 2002, Burke filed a motion to reopen his
immigration proceedings to assert a claim that he was eligible for deferral of removal
under the United Nations Convention Against Torture (CAT). Burke claimed that he
would be tortured if returned to Jamaica, because he had been a government informant in
this country, and his cooperation had led to the arrest of Jamaican drug lords. Burke
claimed that the remaining gang members in Jamaica would torture him upon his return.
On May 30, 2002, the IJ vacated the earlier deportation order and granted the motion to

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reopen. At a hearing on July 11, 2002, Burke, through counsel, informed the IJ that he
had an approved I-130 petition, but the IJ noted that it did not appear that Burke was
eligible to adjust his status, as he could not obtain a waiver of his controlled substance
convictions. A.R. 199-200. On July 24, 2002, Burke was served with a new Notice to
Appear, charging him with being removable on the basis of rape, petit larceny and
criminal possession convictions. Additional charges of deportability were brought on
August 27, 2002 for convictions for possession of crack cocaine and marijuana.
Following a hearing, the IJ noted that Burke was ineligible for asylum and
statutory withholding of removal as he had committed crimes that fit the definition of
particularly serious crimes. As for his claim for deferral of removal under the CAT, the IJ
found that Burke had a genuine fear of being tortured upon his return to Jamaica. The IJ
found that he feared retribution as a known informant for the U.S. government, which led
to the deportation of Jamaican nationals involved in drug trafficking and violent crimes in
the U.S., and that there may be individuals who would seek retribution against Burke.
However, the IJ did not grant deferral of removal, finding that Burke could not show that
the Jamaican government would either participate in or acquiesce to his torture. The IJ
noted that over 20 years had passed since Burke had been an informant, and hoped that he
could keep a low profile in Jamaica.
Burke timely appealed the IJ’s decision. The BIA affirmed without opinion on
June 18, 2003. Burke attempted to file a habeas petition to challenge the decision.
Following a tortuous procedural path we need not set forth here, on August 4, 2005 this

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Court ordered that the habeas petition be docketed in this Court as a petition for review of
the BIA’s June 18, 2003 decision.
I.
Before we reach the merits of Burke’s claims, we must first address the scope of
our jurisdiction. Under section 242(a)(2)(C) of the Immigration and Nationality Act
(INA) [8 U.S.C. § 1252(a)(2)(C)], we lack jurisdiction to review “any final order of
removal against an alien who is removable by reason of having committed,” inter alia, a
controlled substance violation covered in INA § 212(a)(2). However, the REAL ID Act
of 2005 restored direct review of constitutional claims and questions of law presented in
petitions for review of final removal orders. See INA § 242(a)(2)(D) [8 U. S.C.
§ 1252(a)(2)(D)]; Papageorgiou v. Gonzales, 413 F.3d 356, 358 (3d Cir. 2005). Because
Burke has been convicted of controlled substance violations, we may consider only
constitutional issues, pure questions of law, and issues of application of law to
uncontested facts. See Kamara v. Attorney General, 420 F.3d 202, 211 (3d Cir. 2005).
“[F]actual or discretionary determinations continue to fall outside [our] jurisdiction.”
Sukwanputra v. Gonzales, 434 F.3d 627, 634 (3d Cir. 2006).
II.
Burke raises four issues in his brief: (1) the BIA “misconstrued or misapplied the
law” in upholding the IJ’s decision that Burke had failed to establish government
complicity in conjunction with his CAT claim; (2) the BIA violated his substantive due
process rights by failing to apply the state-created danger doctrine; (3) his due process

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1 Because the BIA affirmed the decision of the IJ without opinion, we review the IJ’s
decision. Zhang v. Gonzales, 405 F.3d 150, 155 (3d Cir. 2005).
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rights were violated because he was denied the effective assistance of counsel in his
immigration proceedings; and (4) the IJ erred in finding that he was ineligible for
adjustment of status because his wife’s I-130 petition had expired. We agree with Burke
that the IJ1 used the wrong standard in denying his CAT claim, and will remand on that
issue. First, we will briefly address the remaining issues.
Burke’s argument that his substantive due process rights were violated by the
BIA’s failure to apply the state-created danger doctrine is a constitutional issue; we thus
have jurisdiction to review the issue. However, Burke’s argument is foreclosed by this
Court’s decision in Kamara, 420 F.3d at 216-18, in which we held that “the state-created
danger exception has no place in our immigration jurisprudence.” Although Burke argues
that Kamara is wrongly decided, we are bound by this precedential decision, and we are
without authority to reevaluate the decision absent intervening authority. Third Circuit
I.O.P. 9.1.
Burke’s third argument is that he was denied due process because he was denied
the effective assistance of counsel in his immigration proceedings. The Government
argues that we lack jurisdiction to review this claim, as there is no Sixth Amendment
constitutional right to counsel in removal proceedings. However, we have noted that an
alien does have a right to Due Process in a removal proceeding through the Fifth
Amendment, and that where the alien can show that due to the ineffective assistance of

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2 Even if Burke had met the procedural requirements of Lozada, he did not show how
he was prejudiced by his attorney’s alleged ineffectiveness. In his brief to the BIA, he
complained that she had not filed a brief, but her untimely brief was later accepted by the
BIA. He complained that the lack of communication with his attorney concerning
hearing dates caused him to lose witnesses that were prepared to testify on his behalf, but
he did not state what those witnesses would have said, nor how their testimony would
have changed the outcome. Indeed, not until his reply brief in this Court did he explain,
in a vague manner, what the witnesses were prepared to say. We will “not consider
arguments raised on appeal for the first time in a reply brief.” Gambino v. Morris, 134
F.3d 156, 161 n.10 (3d Cir. 1998).
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counsel he was prevented from reasonably presenting his case, a violation may be found.
Ponce-Leiva v. Ashcroft, 331 F.3d 369, 374, 377 (3d Cir. 2003).
As with any claim, we have jurisdiction to review the claim only if “the alien has
exhausted all administrative remedies available to the alien as of right.” INA § 242(d)(1)
[8 U.S.C. § 1252(d)(1)]; see also Bonhometre v. Gonzales, 414 F.3d 442, 448 (3d Cir.
2005). Here, it is unclear whether Burke intended to raise an ineffectiveness claim in his
brief to the BIA. His brief does mention difficulties he had in communicating with his
attorney concerning whether she had filed a brief, and his attorney’s apparent failure to
inform him of changes in his hearing dates. See A.R. 8-9, 29-30. However, his brief
does not detail what, if any, steps he took to meet the procedural requirements for
presenting an ineffectiveness claim to the BIA. See Matter of Lozada, 19 I. & N. Dec.
637 (BIA 1988) (setting forth procedural requirements for raising ineffective counsel
claims); Lu v. Ashcroft, 259 F.3d 127, 132-33 (3d Cir. 2001) (approving Lozada
requirements as reasonable exercise of BIA’s discretion). Thus, the claim was not
properly presented to the BIA and is unexhausted.2

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Burke’s fourth argument is that the IJ erred in finding him ineligible for adjustment
of status because his I-130 had “expired.” We need not reach the issue of whether an I-
130 expires after a certain point, as we agree with the IJ that Burke was in any event
ineligible for adjustment of status because his controlled substance violations could not be
waived pursuant to INA § 212(h) [8 U.S.C. § 1182(h)]. A.R. 199-200.
We now turn to Burke’s first claim: that the BIA “misconstrued or misapplied the
law” in denying his CAT claim. The IJ found Burke’s testimony regarding his CAT
claim to be “essentially credible,” and found that he had “a genuine fear of being tortured
upon his return to Jamaica.” A.R. 187. The IJ noted that Burke would need to show
consent or acquiescence of a public official, and that “acquiescence” under the
regulations and BIA precedent required that “a public official, prior to activity
constituting torture, have awareness of such activity and breach his or her legal
responsibility to intervene to prevent such activity.” A.R. 187, citing 8 C.F.R.
208.18(a)(7) and Matter of S-V-, Int. Dec. 3430 (BIA 2000). The IJ denied relief, at least
in part, because Burke had not shown that the Jamaican government would be complicit
in his torture; that “the government would either participate in his torture or acquiescence
[sic] in his torture through one or more agents, officials or officers of the government
acting in an official capacity.” A.R. 188.
In Silva-Rengifo v. Attorney General, 473 F.3d 58, 70 (3d Cir. 2007), we recently
held that the definition of “acquiescence” adopted by the BIA in Matter of S-V- was the
wrong legal standard to apply to CAT claims. Rather, we held that “acquiescence to

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torture requires only that government officials remain willfully blind to torturous conduct
and breach their legal responsibility to prevent it.” Id. As the IJ applied the wrong
standard in deciding Burke’s claim, we remand to give the BIA the first opportunity to
apply the correct standard. INS v. Ventura, 537 U.S. 12, 16 (2002) (per curiam ).
For the foregoing reasons, we will deny the petition in part, grant the petition in
part, and remand for further proceedings.

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