Chadrick Calvin COLE, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.
No. 11-15557.
United States Court of Appeals, Eleventh Circuit.
March 14, 2013.
712 F.3d 517
MARCUS, Circuit Judge:
At issue in this appeal is whether the Board of Immigration Appeals (“BIA“) correctly found petitioner Chadrick Cole removable as an aggravated felon, and whether its denial of his application for asylum, withholding of removal, and relief under the United Nations Convention Against Torture (“CAT“) was proper. The BIA found Cole removable and denied his claims for asylum and withholding of removal because his underlying offense—pointing a firearm at another person, in violation of
Sandra L. Greene, Greene Fitzgerald Advocates & Consultants, York, PA, for Petitioner.
Jessica R.C. Malloy, Dara Smith, David V. Bernal, Krystal Samuels, U.S. Dept. of Justice, OIL, Washington, DC, Alfie Owens, DHS/ICE Office of Chief Counsel—ATL, Atlanta, GA, for Respondent.
*Honorable Sandra Day O‘Connor, Associate Justice (Retired) of the United States Supreme Court, sitting by designation.
I.
A.
The relevant facts are these. Petitioner Chadrick Cole is a native and citizen of Jamaica who was born on November 7, 1988. Cole was admitted into the United States as a lawful permanent resident in 2006.
On April 6, 2009, Cole violated a South Carolina criminal statute,
The DHS later amended the charge of removability pursuant to
At the hearing, Cole offered three distinct theories in support of his claims for asylum, withholding of removal, and CAT relief. First, Cole‘s developmental disabilities would make him a target for discrimination or persecution against disabled individuals. Second, Cole‘s status as a deportee would result in government abuse, including police profiling. Finally, his family‘s involvement with the People‘s National Party (“PNP“) would make Cole a target of politically motivated violence from the Jamaica Labour Party (“JLP“), the PNP‘s primary political rivals.
Cole testified, and his mother Monica Singleton and his sister Annakay Charles corroborated, that he was born with his throat attached to his lungs, suffers from narcolepsy or a similar sleeping disorder, and has a severe learning disability. Due to his disabilities, he was teased and beaten up by other children in his age cohort while living in Jamaica. In addition, Cole presented evidence that, if returned to Jamaica, he would have difficulty obtaining employment or access to adequate health care. Cole also testified that he feared returning to Jamaica as a deportee, because he had heard from people in Jamaica that most deportees die upon returning there. He heard that deportees are temporarily detained in a jail called “Central” upon their return to Jamaica, although he had never seen “Central” himself. Finally, Cole testified that his father and his brother Kevin were supporters of the PNP, which is engaged in a struggle for political power with the JLP. In 2000, political rivals shot Kevin, who is now confined to a wheelchair and currently in hiding. Cole testified to his fear that, if returned to Jamaica, he would be the target of politically motivated violence. During cross-examination, Cole admitted, however, that he could relocate to a safer town where people were not aware of his political associations.
B.
On June 20, 2011, the IJ issued a written decision denying Cole‘s application for asylum, withholding of removal, and CAT protection, and ordered him removed to Jamaica. The IJ first held that Cole‘s SCYOA conviction constituted a “conviction” as defined in the INA. The IJ next held that Cole was removable under the government‘s two
Because Cole was convicted of an aggravated felony, the IJ determined he was ineligible for asylum under
Finally, the IJ considered Cole‘s CAT claims. The IJ made several factual findings regarding each of Cole‘s distinct theories of torture and ultimately rejected all three. Regarding Cole‘s physical and mental disabilities, the IJ found that “the Jamaican government is taking commendable steps to actively combat the marginalization of persons with disabilities in the country.” Thus, there was no possibility that Cole would be tortured due to his disabilities with the acquiescence of the government.
As for Cole‘s status as a deportee, the IJ did not find substantial evidence in the record to indicate that the Jamaican government tortured aliens removed to Jamaica. The documentary evidence indicated that “the Jamaican government has taken steps to identify dangerous deportees to address a spike in crime that has been attributed to an increase of Jamaican deportees, not for the illicit purpose of torturing deportees.” The IJ also held that, even assuming arguendo that Cole‘s allegations of temporary detention were true, they fell short of the legal threshold for torture established by this Circuit.
Regarding Cole‘s claim of imputed political association, the IJ found that Cole had not established it was more likely than not that he would suffer reprisals due to his imputed political association. Cole lived in Jamaica from 1988 to 2006—a period that included the five years after Kevin was shot—and never suffered violence due to his father‘s or brother‘s political associations. Furthermore, documentary evidence attested to a decline in political violence in Jamaica in recent years. Finally, Cole had testified that he could relocate within the country to avoid suffering harm due to his imputed political associations. Accordingly, the IJ denied Cole all three forms of relief he sought and ordered that Cole be removed to Jamaica. Cole appealed this decision, along with the denial of his motion for a continuance, to the BIA.
C.
On October 28, 2011, the BIA dismissed Cole‘s appeal and upheld most, but not all, of the IJ‘s decision. The BIA first decided that Cole‘s SCYOA conviction was a conviction for immigration purposes. The BIA reasoned that the SCYOA resulted in convictions, not civil adjudications of status, and thus was unlike juvenile delinquency proceedings, which the BIA did not treat as convictions for immigration purposes. The BIA also sustained Cole‘s removability pursuant to
Next, the BIA considered Cole‘s applications for asylum and withholding of removal. Since Cole was an aggravated felon,
Finally, the BIA rejected Cole‘s due process challenge to the IJ‘s denial of his motion for a continuance. The BIA held that there was no prejudice to Cole, because the documentary evidence sought—which would have corroborated the existence of his disabilities, a fact not in dispute—was not relevant to the reasons the IJ had denied his claims for relief. Cole timely appealed the BIA‘s decision.
II.
We review “only the BIA‘s decision,” except to the extent that it “expressly adopt[s] the IJ‘s opinion or reasoning.” Imelda v. U.S. Att‘y Gen., 611 F.3d 724, 727 (11th Cir. 2010). As a threshold matter, we determine the extent of our subject-matter jurisdiction de novo. Amaya-Artunduaga v. U.S. Att‘y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006). Legal and constitutional questions, which this Court always has jurisdiction to consider, receive de novo review. Poveda v. U.S. Att‘y Gen., 692 F.3d 1168, 1172 (11th Cir. 2012). However, we defer to the BIA‘s permissible construction of ambiguous terms in the Immigration and Nationality Act (“INA“) under Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). See Poveda, 692 F.3d at 1176. To the extent we have jurisdiction to do so, we review factual determinations under the substantial evidence test. Thus, we will affirm if the BIA‘s decision “is supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Imelda, 611 F.3d at 727 (internal quotation marks omitted). Under this standard, reversal requires finding “that the record not only supports reversal, but compels it.” Id. at 728 (quoting Mendoza v. U.S. Att‘y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003)).
A number of statutes and regulations govern this appeal. The REAL ID Act of 2005, Pub.L. No. 109-13, 119 Stat. 302, limits our jurisdiction if the petitioner‘s removability is predicated upon a criminal offense covered in
Four statutes are relevant in assessing the merits of Cole‘s claims.
III.
A.
The threshold question is whether Cole‘s conviction under the SCYOA qualifies as a conviction for immigration purposes, an issue of first impression in this Circuit. Cole contends that it does not, and, if correct on this matter, Cole would not be removable. The definition of “conviction,” however, clearly encompasses the SCYOA proceedings in question. The text of the statute is the beginning and the end of our inquiry, for it defines a conviction as:
[A] formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where—
(i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and
(ii) the judge has ordered some form of punishment, penalty, or restraint on the alien‘s liberty to be imposed.
The text of the statute enumerates two conditions, both of which an SCYOA conviction satisfies. Notably, the text makes no distinction based on the age of the offender or what type of proceeding results in the conviction. The statute also does not carve out any exception for convictions that come with the possibility of expungement in the future. Rather, the text compels us to treat as a conviction any formal judgment of guilt entered by a court, or any finding of guilt coupled with punishment. In this case, the proceeding occurred in the Court of General Sessions, the court of general jurisdiction in South Carolina with authority over criminal matters.1 The Court of General Sessions accepted Cole‘s guilty plea and sentenced him to serve an indeterminate sentence of
Two of our prior decisions have read this unambiguous statute in precisely the same way. In Resendiz-Alcaraz v. U.S. Att‘y Gen., 383 F.3d 1262, 1271 (11th Cir. 2004), a panel of this Court held that an expunged conviction nonetheless qualified as a conviction for immigration purposes. The petitioner in that case had been convicted of possession of marijuana in a Missouri state court, which expunged the conviction a year later pursuant to
The language of
§ 1101(a)(48)(A) is quite clear—an alien will be considered to have a conviction for immigration purposes if: (1) a judge or jury found the alien guilty, if the alien entered a guilty plea or a plea of nolo contendere, or if the alien admitted sufficient facts to warrant a finding of guilt; and (2) the judge ordered some form of punishment.
Id. at 1268. Much like Cole‘s conviction, Resendiz-Alcaraz‘s “state conviction satisfie[d] these conditions. He pled guilty to the possession offense and was subject to a penalty of one year probation.” Id. Expungement was irrelevant, we explained, because “the statutory definition on its face appears to negate for immigration purposes the effect of state rehabilitative measures that purport to expunge or otherwise remove a conviction.” Id. Thus, the Court concluded, “a state conviction is a conviction for immigration purposes, regardless of whether it is later expunged under a state rehabilitative statute, so long as it satisfies the requirements” of
The other relevant decision from our Court is Singh v. U.S. Att‘y Gen., 561 F.3d 1275 (11th Cir. 2009). In Singh, the 15-year-old petitioner pleaded guilty in Florida circuit court to several felonies, id. at 1277, and the INS sought to remove him as an alien convicted of an aggravated felony. Id. at 1278. On appeal, Singh argued that his conviction as an adult in state court could not qualify as a conviction for immigration purposes, because in the federal system the Federal Juvenile Delinquency Act (“FJDA“) would have treated a non-violent 15-year-old offender as a juvenile delinquent. Id. at 1278-79. The panel in Singh recited the relevant definition of conviction from
We follow the plain reading of
§ 1101(a)(48)(A) , as well as the First, Second, and Ninth Circuits, and hold that Singh‘s conviction as an adult in Florida court is a conviction for immigration purposes, even though he was a minor at the time.
Resendiz-Alcaraz and Singh establish that, standing alone, neither the possibility of expungement nor the age of the offender are relevant in determining whether a conviction in a criminal court of general jurisdiction qualifies as a convic-
Indeed, even if we were to look at the legislative history of the Illegal Immigration Reform & Immigrant Responsibility Act of 1996 (“IIRIRA“), Pub.L. No. 104-208, 110 Stat. 3009-546, it would only reinforce our interpretation of the text. Congress intended for an alien‘s conviction to count as a conviction as soon as the original judgment or finding of guilt occurred, regardless of subsequent events such as expungement or suspension of sentence. See H.R. Rep. 104-828, at 224 (1996) (Conf.Rep.). The report explains that the revised definition “deliberately broaden[ed] the scope of the definition of ‘conviction‘” so that the federal meaning of “conviction” would be unaffected by the states’ “myriad of provisions for ameliorating the effects of a [state] conviction.” Id. This provision “clarifie[d] Congressional intent that even in cases where adjudication is ‘deferred,’ the original finding or confession of guilt is sufficient to establish a ‘conviction’ for purposes of the immigra-
Thus, we end where we began, with the clear and unambiguous command of
B.
Cole contends that his conviction under
The term “crime of violence” means—
(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
To determine whether a state law offense qualifies as a crime of violence for immigration purposes, we employ a categorical approach, looking to the “elements and the nature of the offense of conviction, rather than to the particular facts relating to petitioner‘s crime.” Leocal v. Ashcroft, 543 U.S. 1, 7, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004); see also Hernandez v. U.S. Att‘y Gen., 513 F.3d 1336, 1339 (11th Cir. 2008). As a federal court analyzing a state law offense, we are bound by the state supreme court‘s interpretation of state law, “including its determination of the elements” of a crime. See Johnson v. United States, 559 U.S. 133, 130 S.Ct. 1265, 1269, 176 L.Ed.2d 1 (2010). In instances when the state supreme court has not definitively ruled, we “are bound by decisions of a state‘s intermediate appellate courts unless there is persuasive evidence that the highest state court would rule otherwise.” Pendergast v. Sprint Nextel Corp., 592 F.3d 1119, 1133 (11th Cir. 2010) (internal quotation marks omitted); see also United States v. King, 673 F.3d 274, 279-80 (4th Cir. 2012) (applying this approach to
In light of Leocal, we ask whether the state law offense contains a mens rea greater than negligent conduct. 543 U.S. at 9-11, 125 S.Ct. 377. Leocal reviewed a decision of this Court holding that
The Court then turned to § 16(b) and gave it an analogous construction: “§ 16(b) does not ... encompass all negligent misconduct.... It simply covers offenses that naturally involve a person acting in disregard of the risk that physical force might be used against another in committing an offense.” Id. In short, the “substantial risk that physical force ... may be used” is not equivalent to “the possibility that harm will result from a person‘s conduct, but to the risk that the use of physical force against another might be required in committing a crime.” Id. The Court offered burglary as the paradigmatic example: “A burglary would be covered under § 16(b) not because the offense can be committed in a generally reckless way or because someone may be injured, but because burglary, by its nature, involves a substantial risk that the burglar will use force against a victim in complet-
On its face,
The BIA correctly determined that
Indeed, before Leocal, the Fourth Circuit had already decided that
Cole‘s arguments to the contrary are unavailing. Cole has placed great weight on the fact that the statute criminalized pointing even with an “unloaded firearm.”
Cole also argues that pointing a firearm and presenting it are two distinct ways to violate
There are three significant consequences to this determination. First, pursuant to
C.
The third issue Cole has raised is whether he is eligible for withholding of
The relevant INA provision states:
Subparagraph (A) [regarding withholding of removal] does not apply to an alien ... if the Attorney General decides that—
...
(ii) the alien, having been convicted by a final judgment of a particularly serious crime is a danger to the community of the United States;
...
For purposes of clause (ii), an alien who has been convicted of an aggravated felony (or felonies) for which the alien has been sentenced to an aggregate term of imprisonment of at least 5 years shall be considered to have committed a particularly serious crime. The previous sentence shall not preclude the Attorney General from determining that, notwithstanding the length of sentence imposed, an alien has been convicted of a particularly serious crime.
The INA defines a term of imprisonment this way: “Any reference to a term of imprisonment or a sentence with respect to an offense is deemed to include the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part.”
Initially, the government disputes whether Cole adequately raised this argument in his brief. A party adequately raises an issue when the party “specifically and clearly identified it in its opening brief; otherwise, the claim will be deemed abandoned and its merits will not be addressed.” Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004). To adequately raise a claim or issue, a party “must plainly and prominently so indicate,” for instance by “devot[ing] a discrete section of his argument to” those claims. United States v. Jernigan, 341 F.3d 1273, 1283 n. 8 (11th Cir. 2003). If the party mentions the issue only in his Statement of the Case but does not elaborate further in the Argument section, the party has abandoned that issue. See Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n. 6 (11th Cir. 1989). Cole did not abandon this issue. Initially, in the Summary of Argument, Cole lists as a discrete issue, “Whether the Respondent erred in determining that the Petitioner‘s conviction was a particularly serious crime rendering Petitioner ineligible for Withholding Of Removal?” Unlike the abandoned argument in Greenbriar, this argument reappears as a discrete issue in Cole‘s Argument section. Labeled 4.B.1.,
For several decades, the BIA has measured all indeterminate sentences by their maximum possible term, see In re S-S-, 21 I. & N. Dec. 900, 902-03 (BIA 1997), and there is a circuit split regarding whether this rule merits Chevron deference. In Nguyen v. INS, 53 F.3d 310 (10th Cir. 1995), the Tenth Circuit deferred to the BIA‘s rule. Nguyen explained that this interpretation was “permissible,” in large part because it “accord[ed] with the Sentencing Guidelines’ rationale that the term ‘sentence of imprisonment’ refers to the maximum sentence imposed.” Id. at 311 (internal quotation marks omitted) (citing
In Shaya v. Holder, 586 F.3d 401 (6th Cir. 2009), on the other hand, the Sixth Circuit denied this longstanding rule deference. Shaya confronted Michigan‘s idiosyncratic sentencing scheme, which denied the state courts discretion in setting the maximum term for an indeterminate sentence and instead obligated the courts to set the maximum penalty provided by the law as the maximum term. See id. at 406. The Sixth Circuit reasoned that “determining the length of [a] sentence is less an exercise in interpreting the INA provision than it is interpreting state sentencing law,” id., and noted that the BIA‘s own decisions establishing this rule had been decided based on their reading of the relevant state laws. Shaya thus concluded that “these kinds of [state law] determinations by the BIA are not entitled to Chevron deference,” and conducted its own examination of Michigan law to determine how to measure an indeterminate sentence. Id. at 406-08.
The Sixth Circuit‘s reasoning casts doubt on whether we should defer to the BIA rule in this case, since Chevron deference applies only to an “agency‘s construction of the statute which it administers.” Chevron, 467 U.S. at 842, 104 S.Ct. 2778. In this case, however, we need not decide between these two competing approaches. If we follow Shaya and examine South Carolina state law, then Cole‘s indeterminate sentence under the SCYOA should be treated as a five-year sentence. The Supreme Court of South Carolina recently addressed whether a paroled convict‘s six-year indefinite term of imprisonment pursuant to the SCYOA had ended with his conditional release or at the end of the full six-year term. State v. Ellis, 397 S.C. 576, 726 S.E.2d 5, 5-7 (2012). Ellis reaffirmed that South Carolina law treats “[p]robation, a suspension of the period of incarceration ... [and] actual incarceration” as “clearly part of a criminal defendant‘s ‘term of imprisonment.‘” Id. at 7 (quoting Thompson v. S.C. Dep‘t of Pub. Safety, 335 S.C. 52, 515 S.E.2d 761, 763 (1999)). Thus, the highest court of the state has construed the term of imprisonment for a SCYOA indeterminate sentence as the maximum possible term, even if the individual is actually released from incarceration significantly earlier. On the other hand, if we follow Nguyen and defer to the
Thus, we conclude that Cole‘s indeterminate five-year SCYOA sentence constitutes a five-year sentence pursuant to
D.
The Convention Against Torture states that signatory nations will not “expel, return or extradite a person to another State where there are substantial grounds for believing he would be in danger of being subjected to torture.” United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Art. 3(1), Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85. The Convention‘s implementing legislation, the Foreign Affairs Reform and Restructuring Act of 1998, Pub.L. No. 105-277, 112 Stat. 2681, in turn directed “the heads of the appropriate agencies” to “prescribe regulations to implement the obligations of the United States under Article 3 of the [CAT].” See
any act by which severe pain or suffering ... is intentionally inflicted on a person for such purposes as obtaining from him or her or a third person information or a confession, punishing him or her for an act he or she or a third person has committed or is suspected of having committed, or intimidating or coercing him or her or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.
We are mindful that
With that framework in mind, we turn to the BIA‘s and IJ‘s determinations in this case.4 The following determinations are factual in nature and hence unreviewable. With regard to Cole‘s claim that persons with physical or mental disabilities are tortured in Jamaica, the IJ found, to the contrary, that “the Jamaican government is taking commendable steps to actively combat the marginalization of persons with disabilities in the country.” The IJ therefore found that Cole had “not shown that there is even a possibility that he will be tortured with the acquiescence of the government.”
As for Cole‘s second claim that deportees are tortured upon their return to Jamaica, the IJ did not find substantial evidence in the record to indicate that the Jamaican government tortured aliens removed to Jamaica. Rather, the IJ found that the government has taken specific steps to identify dangerous deportees rather than discriminating against the group as a whole. In addition, “[t]he Jamaican police seek approval from the Jamaican Supreme Court before the organization monitors deportees that it feels present a threat to the community.”
Finally, regarding Cole‘s claim he would be targeted based on imputed political association, the IJ found that Cole had not established it was more likely than not that he would suffer violent reprisal due to his father‘s or brother‘s ties to the PNP. The IJ based this determination on several facts. Cole lived in Jamaica from 1988 to 2006—a time period that included five years after his brother Kevin was shot in a politically motivated attack—and was never the target of politically motivated violence. Furthermore, documentary evidence attested to a recent decline in political violence in Jamaica. In addition, Cole had testified that he could relocate within the country. We take these facts as given for purposes of our review.
These factual findings undercut two of Cole‘s claims completely. First, we cannot review the BIA‘s decision that Cole would not be tortured based on his disabilities, because the decision is sustainable solely based on the IJ‘s factual finding that the Jamaican government actively combats marginalization of the disabled. See Reyes-Sanchez v. U.S. Att‘y Gen., 369 F.3d 1239, 1242 (11th Cir. 2004) (acquiescence requires that a public official, prior to the activity constituting torture, have awareness of that activity and then breach a legal responsibility to intervene to prevent that activity). Second, we cannot review the BIA‘s decision that Cole would not be tortured based on imputed political opinion. The likelihood of future harm is a factual question, see Jean-Pierre, 500 F.3d at 1322; Zhou Hua Zhu v. U.S. Att‘y Gen., 703 F.3d 1303, 1310-14 (11th Cir. 2013), which the IJ determined in this case to be improbable.
In Jean-Pierre, as we have noted, the petitioner was an AIDS patient who demonstrated that he would be beaten and confined for weeks in a tiny crawl space, 500 F.3d at 1317, and that he would be targeted due to his disease, id. at 1318. Other circuits have also held that detention plus egregious physical abuse or intentional infliction of suffering may amount to torture. See, e.g., Kang v. Att‘y Gen. of the U.S., 611 F.3d 157, 166-67 (3d Cir. 2010) (petitioner was entitled to CAT relief when “[t]he record compels the conclusion that if Kang is removed to China it is more likely than not that she will be beaten, suffocated, deprived of sleep, shocked with electrical current, and/or forced to stand for long periods of time, and that this would be done with the purpose of causing her severe pain and suffering“). These examples far outstrip what Cole has alleged with regard to “Central” detention in this case. Unlike in Jean-Pierre or Kang, neither the IJ nor the BIA found that Cole would suffer such egregious physical abuse, or anything even remotely like that. The BIA‘s determination to this effect does not constitute legal error.
Cole‘s remaining arguments are unavailing, since they contest the weight and significance given to various pieces of evidence, which we lack jurisdiction to review. To the extent Cole‘s claim is a legal one asserting the BIA and IJ failed to provide a reasoned explanation of its decision, it is well established that “the IJ and the BIA need not address specifically each claim the petitioner made or each piece of evidence the petitioner presented“; they need only “consider the issues raised and announce their decision in terms sufficient to enable a reviewing court to perceive that they have heard and thought and not merely reacted.” Carrizo v. U.S. Att‘y Gen., 652 F.3d 1326, 1332 (11th Cir. 2011) (internal quotation marks omitted). The IJ‘s thorough, twenty-three-page opinion, and the BIA‘s five-page affirmation, fully meet this threshold. Thus, the BIA and the IJ properly denied Cole CAT relief.
E.
Finally, Cole argues that the IJ‘s denial of his motion for a continuance violated his right to due process, because he was unable to obtain additional documentary evidence proving his disabilities and difficulties in school in Jamaica. To demonstrate a constitutional violation, Cole must establish that he “was deprived of liberty without due process of law and that the purported errors caused [him] substantial prejudice.” Lapaix v. U.S. Att‘y Gen., 605 F.3d 1138, 1143 (11th Cir. 2010). Substantial prejudice means that “in the absence of the alleged violations, the outcome of the proceeding would have been different.” Id. (citing Ibrahim v. INS, 821 F.2d 1547, 1550 (11th Cir. 1987)).
Cole has not shown substantial prejudice in this case. The pieces of evidence he sought were primarily “school and doctor‘s
We, therefore, conclude that none of Cole‘s claims justify granting his petition.
PETITION DENIED.