Samuel Jason Roberts v. U.S. Attorney General

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-11960
Non-Argument Calendar
____________________
SAMUEL JASON ROBERTS,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A206-130-865
____________________
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2 Opinion of the Court 23-11960
Before WILSON, L UCK , and B RASHER , Circuit Judges.
PER CURIAM:
Samuel Jason Roberts petitions us for review of two issues
from his immigration court proceedings. First, he argues the Board
of Immigration Appeals erred because it did not consider the entire
evidentiary record when it affirmed the immigration judge’s deci-
sion that pretermitted his application for asylum, found him ineli-
gible for withholding of removal, and rejected his argument that
he was protected under the Convention Against Torture. Second,
he argues the Board erred by failing to remand his case for the im-
migration judge to consider his motion for voluntary departure.
We disagree. Accordingly, we deny his petition for review.
I.
Samuel Roberts is a native and citizen of Guyana. He en-
tered the United States in 2002 on a tourist visa that authorized him
to remain in the country for six months. In 2013, he was convicted
in Florida for preparing or presenting a fraudulent insurance claim.
In 2014, the Department of Homeland Security issued Roberts a
notice to appear and charged him with removability as a noncitizen
who remained in the United States longer than permitted.
An immigration judge ordered Roberts removable. Roberts
then applied for asylum, withholding of removal, and Convention
Against Torture protection. According to Roberts, he was fearful
of returning to Guyana because of his political views, which he
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23-11960 Opinion of the Court 3
wrote and spoke publicly about, and his membership in the “Afro-
Guyanese” social group. He also said that he would be a target in
Guyana because his father was the former Deputy Commissioner
of Police in Guyana and while he was in that position a political
activist was allegedly assassinated by the government. Roberts and
his father testified that there were rumors that his father partici-
pated in the assassination plot.
Roberts testified that his family left Guyana in 2002 because
it was an unsafe place for them and that a group of criminals sup-
ported by the government threatened him and his family and
forced them to leave their property. He said the threats were polit-
ically motivated because of his father’s previous role in the govern-
ment. He added that the threats would be intensified upon his re-
turn because in 2015 the Guyana government began to investigate
the assassination his father was allegedly involved in. And he also
shared that he knew other political activists and family members
who were killed in Guyana, and that friends and former govern-
ment officials in Guyana told him he would not be safe if he re-
turned to Guyana.
The immigration judge found Roberts was removable as
charged, pretermitted his application for asylum, determined he
was not eligible for withholding of removal, and denied his appli-
cation for protection under the Convention Against Torture. It pre-
termitted his application for asylum because he did not file that ap-
plication within one year of his last entry into the United States and
did not demonstrate he qualified for an exception to the filing
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4 Opinion of the Court 23-11960
deadline. It determined he was not eligible for withholding of re-
moval because he did not establish that he was persecuted in the
past or that his life or freedom would be threatened in the future
on account of a protected ground, and because the “Afro Guya-
nese” social group was not cognizable under the statute because it
was not shown to be socially distinct within the Guyanese society.
And it denied Roberts’s application for protection under the Con-
vention Against Torture because he presented no evidence of past
torture and did not establish he was more likely than not to be tor-
tured by or at the consent or acquiescence of a public official should
he return to Guyana.
Roberts filed a timely administrative appeal to the Board of
Immigration Appeals. He challenged the immigration judge’s find-
ings regarding asylum, withholding of removal, and Convention
Against Torture protection, and he requested remand to apply for
voluntary departure to Guyana.
The Board upheld the immigration judge’s decision and dis-
missed Roberts’s appeal. It rejected his argument about asylum be-
cause he presented his theory that he qualified for an exception to
the one-year filing deadline for the first time on appeal. It also rea-
soned that even if that argument were preserved, the commence-
ment of the 2015 inquiry was not a material change of the condi-
tions that prompted his departure from Guyana. It rejected his ar-
gument about withholding of removal because the threats Roberts
cited did not rise to the requisite severity to be considered past per-
secution. It held that considering the evidence Roberts presented
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23-11960 Opinion of the Court 5
and his father’s testimony, he had not met his burden to establish
that more likely than not his life or freedom would be threatened
on account of a protected ground in the future if he were to return
to Guyana. It also rejected Roberts’s argument that he was entitled
to protection under the Convention Against Torture because the
harm Roberts suffered did not constitute past torture and the im-
migration judge was correct that Roberts could reasonably relocate
within Guyana.
The Board also rejected Roberts’s argument that it should
remand the case for him to apply for voluntary departure because
he was not given an opportunity to request voluntary departure. It
reasoned that Roberts never requested voluntary departure before
the proceedings in front of the immigration judge ended. Roberts
timely petitioned for review.
II.
We review de novo whether the Board of Immigration Ap-
peals gave “reasoned consideration” to an applicant’s claims. Ali v.
U.S. Att’y Gen., 931 F.3d 1327, 1333 (11th Cir. 2019). We affirm the
Board’s decision if it is “supported by reasonable, substantial, and
probative evidence on the record considered as a whole.” Ayala v.
U.S. Att’y Gen., 605 F.3d 941, 948 (11th Cir. 2010). Additionally, “[a]
motion to remand based on new evidence is treated as a motion to
reopen,” and we review the Board’s denial of that motion for abuse
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6 Opinion of the Court 23-11960
of discretion. Dos Santos v. United States Att’y Gen., 982 F.3d 1315,
1322 (11th Cir. 2020).
III.
Roberts’s petition for review argues that the Board of Immi-
gration Appeals failed to give “reasoned consideration” to all the
relevant evidence related to his claims for asylum, withholding of
removal, and protection under the Convention Against Torture,
and that the Board erred by not considering his claim for voluntary
departure under the Immigration and Nationality Act.
To begin, we agree with the government that Roberts does
not challenge the immigration judge’s findings related to his ineli-
gibility for asylum, withholding of removal, and Convention
Against Torture protection. Instead, Roberts’s challenges only the
adequacy of the Board’s review of the immigration judge’s order
and the Board’s denial of Roberts’s motion to remand to apply for
voluntary departure. Thus, we will consider only these two issues,
and not the immigration judge’s findings, in his petition for review.
We agree with the government that the Board properly re-
viewed the immigration judge’s denial of Roberts’s claims for asy-
lum, withholding of removal, and Convention Against Torture
protection and gave “reasoned consideration” to Roberts’s claims.
The Board is required to give “reasoned consideration” to an appli-
cant’s claims and “make adequate findings.” Ali, 931 F.3d at 1333
(internal citations omitted). To determine whether the Board gave
a “reasoned consideration,” we look to “whether the agency has
considered the issues raised and announced its decision in terms
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23-11960 Opinion of the Court 7
sufficient to enable a reviewing court to perceive that it has heard
and thought and not merely reacted.” Jeune v. U.S. Att’y. Gen., 810
F.3d 792, 803–04 (11th Cir. 2016) (internal citations omitted). The
Board “need not address specifically each claim the petitioner made
or each piece of evidence the petitioner presented” to fulfil its obli-
gations. Carrizo v. U.S. Att’y Gen., 652 F.3d 1326, 1332 (11th Cir.
2011) (internal citations omitted).
The Board made adequate findings that enable us to per-
ceive that the Board “heard and thought” about each of Roberts’s
arguments. Jeune, 810 F.3d at 803–04. For the asylum claim, the
Board referenced Roberts’s claims about the assassination his fa-
ther was allegedly involved in, the 2015 investigation into that as-
sassination, and the threats Roberts received related to his property
dispute. For the withholding of removal claim, the Board reviewed
the immigration judge’s findings about the likelihood of future per-
secution in Guyana and determined that the immigration judge
properly considered Roberts’s father’s testimony that he was
viewed as an impartial figure in the government and was trusted
by members of the opposing party. And for his claim for protection
under the Convention Against Torture, the Board found that Rob-
erts’s claims were speculative and based on “stringing together a
series of suppositions,” and specifically referenced the current con-
ditions in Guyana. Thus, we hold that the Board gave a sufficient
“reasoned consideration” to each of Roberts’s arguments.
We also agree with the government that the Board properly
denied Roberts’s motion to remand for the immigration judge to
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8 Opinion of the Court 23-11960
consider his motion for voluntary departure. That motion to re-
mand was filed after the immigration judge issued its opinion and
was based on its order of removal. Thus, we review the Board’s
denial of Roberts’s motion to remand for abuse of discretion. See
Dos Santos, 982 F.3d at 1322. The crux of Roberts’s argument is that
he had expected to have an opportunity to request voluntary de-
parture and did not realize the immigration judge closed the re-
moval proceedings at the end of his hearing. Thus, he says the im-
migration judge should have considered his motion and the Board
should have remanded his case to the immigration judge to do so.
The immigration judge did not issue a decision at the end of
the hearing because of time constraints but gave the parties a
chance to raise any other issues and made clear that it continued
the hearing solely to issue a decision. In fact, Roberts raised another
issue when he sought the inclusion of a human rights report into
evidence. But he never mentioned a motion for voluntary depar-
ture. Because the immigration judge made clear to the parties that
she continued the hearing only to issue an opinion and gave the
parties the chance to raise any other issues, and because Roberts
failed to seek voluntary departure, we hold that the BIA did not
abuse its discretion in denying Roberts’s motion to remand.
IV.
The petition for review is DENIED.
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