Selwyn Bowen v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 09-2044
SELWYN BOWEN,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A077-028-987)
Immigration Judge: Honorable Henry S. Dogin
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 26, 2010
Before: BARRY, AMBRO and ROTH, Circuit Judges
(Opinion filed: February 5, 2010)
_________
OPINION
_________
PER CURIAM
Selwyn Bowen, proceeding pro se, petitions for review of the Board of
Immigration Appeals’ (“BIA”) final order of removal. For the reasons that follow, we
will deny the petition.

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It is unclear whether Bowen actually had a visa; regardless, he does not dispute1
the charge of removability.
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I.
Bowen, a native and citizen of Guyana, entered the United States in 1987 as part of
Guyana’s national soccer team. In 2001, he was placed in removal proceedings, for he
had either entered the United States without inspection or stayed beyond the time allowed
under his visa. When Bowen failed to attend his hearing in 2002, the Immigration Judge1
(“IJ”) ordered his removal in absentia. Despite that order, Bowen remained in the United
States.
In 2008, Bowen, then represented by counsel, moved to reopen his removal
proceeding, arguing, inter alia, that he had not received the Notice to Appear (“NTA”)
before the 2002 hearing. The IJ denied the motion and noted that, although Bowen now
sought relief under the Convention Against Torture (“CAT”), he had failed to file an
application. On appeal, the BIA remanded to the IJ to determine whether Bowen could
be charged with having received the NTA. The BIA also denied Bowen’s CAT
application, which he had apparently submitted with his appeal.
On remand, the IJ did not conduct fact finding as to whether Bowen had received
the NTA. Instead, the IJ appeared to treat the removal proceeding as reopened and held a
hearing on Bowen’s new requests for relief: withholding of removal and a new claim
under the CAT. At the hearing, Bowen presented several reasons for fearing a return to
Guyana: (1) Bowen’s former soccer coach, who allegedly made sexual advances toward

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We have jurisdiction over Bowen’s petition pursuant to 8 U.S.C. § 1252(a)(1).2
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Bowen in approximately 1987, apparently still resided in Guyana; (2) the Indo-Guyanese-
led government would persecute Bowen because he was Afro-Guyanese; (3) the
Guyanese government would torture him because he would be returning to the country as
a deportee; and (4) Guyana lacked the medical resources to treat his health problems. The
IJ, rejecting each of these reasons, denied Bowen’s requests for withholding of removal
and relief under the CAT.
On appeal, Bowen, still represented by counsel, challenged the IJ’s denial of
withholding of removal but not the denial of CAT relief. The BIA agreed with the IJ’s
conclusion that Bowen had failed to demonstrate his eligibility for withholding of
removal. In doing so, the BIA concluded that he had “not demonstrated that his [former]
soccer coach targeted him or would seek to target him again on account of his
membership in a particular social group, or that the Guyanese authorities would be unable
or unwilling to protect him from harm.” (Decision of BIA at 2.) Moreover, the BIA held
that Bowen’s documentary evidence did not establish a pattern or practice of persecution
against deportees or individuals of Afro-Guyanese ethnicity. Finally, the BIA stated that
Bowen had not explained how his medical condition entitled him to withholding of
removal. Bowen now seeks review of this most recent BIA decision.2
II.
To qualify for withholding of removal, an alien must establish that it is more

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likely than not that his “life or freedom would be threatened in th[e] country [of removal]
because of the alien’s race, religion, nationality, membership in a particular social group,
or political opinion.” 8 U.S.C. § 1231(b)(3)(A); Tarrawally v. Ashcroft, 338 F.3d 180,
186 (3d Cir. 2003). To meet this standard, the alien must show either (1) past
persecution, which creates a rebuttable presumption of future persecution; or (2) that it is
more likely than not that he will suffer future persecution if removed to the country in
question. See 8 C.F.R. § 208.16(b).
The BIA did not err in rejecting Bowen’s first theory of relief, for he did not show
that his former coach’s alleged actions were motivated by Bowen’s race, religion,
nationality, membership in a particular social group, or political opinion. Bowen’s
second and third theories of relief also lack merit, as we will not disturb the BIA’s finding
that the documentary evidence failed to demonstrate that Guyana has a pattern or practice
of persecuting deportees or those of Afro-Guyanese ethnicity. See Abdille v. Ashcroft,
242 F.3d 477, 483-84 (3d Cir. 2001) (stating that the BIA’s findings “must be upheld
unless the evidence not only supports a contrary conclusion, but compels it”). Bowen’s
fourth theory of relief fails as well, for he did not show how his inability to obtain
medical treatment in Guyana entitles him to withholding of removal. To the extent
Bowen now seeks to raise a new, unexhausted theory of relief, we lack jurisdiction to
review that claim. See Abdulrahman v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir. 2003).
In light of the above, we will deny Bowen’s petition for review. His motion for a

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stay of removal is denied as moot. His motion for an extension of time to file additional
documents is denied as well. See 8 U.S.C. § 1252(b)(4)(A) (providing that this Court
“shall decide the petition only on the administrative record on which the order of removal
is based”).
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