Emmanuel Priva v. U.S. Attorney General

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[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 20-12521

____________________

EMMANUEL PRIVA,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

____________________

Petition for Review of Final Administrative

Removal Order

Agency No. A214-114-358

____________________

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2 Opinion of the Court 20-12521

Before WILSON, LAGOA, and ED CARNES, Circuit Judges.

LAGOA, Circuit Judge:

Emmanuel Priva, a native and citizen of Haiti, petitions

this Court for review of his Final Administrative Removal Order

and adverse reasonable fear determination, which were both is-

sued during Priva’s expedited removal proceedings as an alien

convicted of an aggravated felony under the Immigration and Na-

tionality Act (“INA”) § 238(b), 8 U.S.C. § 1228(b). Under 8 C.F.R.

§ 208.31(g)(1), no further administrative appeal was available to

Priva, but he could seek direct review by this Court. After careful

review and with the benefit of oral argument, we deny the peti-

tion.

I. FACTUAL AND PROCEDURAL BACKGROUND

On December 19, 2014, Priva entered the United States on

an R-1 non-immigrant visa. Priva applied to adjust his status to

that of conditional permanent resident, which was approved on

August 25, 2017. On March 1, 2018, Priva was arrested on several

counts of visa fraud and conspiracy to commit visa fraud, in viola-

tion of 18 U.S.C. §§ 1546(a) and 371. On December 12, 2019, Pri-

va was convicted of those counts and sentenced to twenty-seven

months’ imprisonment.

On March 11, 2020, the Department of Homeland Security

(“DHS”) issued Priva, who was serving his sentence in a federal

correctional facility in Georgia, a Notice of Intent to Issue a Final

Administrative Removal Order (“FARO”) under INA, § 238(b), 8

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20-12521 Opinion of the Court 3

U.S.C. § 1228(b). The notice of intent stated that Priva was de-

portable under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii),

because he was convicted of an aggravated felony as defined in

INA § 101(a)(43)(P), 8 U.S.C. § 1101(a)(43)(P). The notice also

stated that Priva may be represented, at no expense to the gov-

ernment, by counsel. Priva acknowledged receipt of the notice

and requested withholding or deferral of removal, stating that he

feared persecution and torture if he was returned to Haiti. On

May 14, 2020, DHS issued Priva a FARO based on the notice of

intent. 1

Priva’s case was referred to an asylum officer to determine

whether Priva had a “reasonable fear” of prosecution or torture.

On May 19, 2020, Priva briefly sat for a reasonable fear interview,

telling the asylum officer that he had an attorney to represent

him. His attorney asked to reschedule the interview so he could

speak with Priva first, and that request was granted. Priva was

also served later in the reasonable fear interview proceedings with

a list of pro bono legal service providers.

First Reasonable Fear Interview

On May 26, 2020, Priva sat for his first substantive reasona-

ble fear interview with an asylum officer. During this interview,

Priva’s counsel appeared telephonically. Priva was read, with

1 This first FARO did not contain a completed certificate of service. DHS

later cancelled the first FARO in July 2020 and issued Priva a second notice of

intent and a second FARO on July 28 and August 13, 2020, respectively.

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4 Opinion of the Court 20-12521

help from an interpreter, a M-488 form explaining the reasonable

fear process. Priva stated that he understood it and had no ques-

tions about the information. He also received and signed a physi-

cal copy of that form, which had attached to it the list of pro bono

legal service providers. Priva was offered “48 hours to rest and

consult with family members, friends, or anyone else between the

time that [he] receive[d] that information and . . . the interview,”

but he elected to continue. During the interview, Priva stated

that he lived in Haiti from 2009 to 2011 but had not returned since

2011. Priva also stated that he was “never” physically harmed,

threatened, or mistreated by anyone in Haiti.

As to “future harm,” Priva asserted that he was “afraid to

return” to Haiti, specifically stating:

In the last few years I was involved in helping some

folks enter the U.S. from my country. . . . The deal

was you give me money and if you do not get your

visa then you would get your money back. I was

not able to reimburse those people because the gov-

ernment stole my car, my bank account, they stole

everything I had. So now I’m unable to reimburse

them. They know me and I know them. If I go

there without being able to reimburse people there

is no way that I will make it out. They are waiting

for their money. They said that in their statements

and emails.

Priva stated that if he could not reimburse the people he owed

money to, which Priva estimated to be at least 100, he “would be

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20-12521 Opinion of the Court 5

persecuted and tortured and killed.” Priva claimed that he had

received threats from more than twenty people. He stated that

he began receiving threats in 2018 following his arrest, as the

people threatening him had “googled” his name and knew he was

in jail. The asylum officer asked Priva for an example of such

threats. Priva responded that the individuals “cursed” him and

stated that if they did not get their money back, and if he was de-

ported back to Haiti, “then [his] life will pay for [the] money,” as

they could get machetes or guns. Priva also claimed that his wife

used to receive “many” threatening messages. He claimed that

his friends and brother were also threatened by these people.

The asylum officer asked what Priva meant when he stated

he would be persecuted, to which Priva replied he could be killed

with a machete, as he knew of “many groups of people” who had

killed “many people before [him].” Priva also named the “group

of people” he owed money to as “police officers” whom he used

to deal with, or people “related to them.” Priva stated that seven

other people who were in the same situation were killed by the

people they owed money to but that he did not know if the 100

people he owed money to had specifically killed others. He also

stated that “two ministers” in Haiti had threatened him. Addi-

tionally, Priva said a police officer had sent a message to his friend

a month prior stating that “with [his] gun [he doesn’t] play and

[he could] blow [his] mind within a second” and demanding Priva

to send the money. Priva also stated that this police officer could

find him because “Haiti is so small and very connected,” that he

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6 Opinion of the Court 20-12521

“was dealing with everybody in every single area,” that the people

who he owed money could see him on social media as a deportee,

and that he could not hide. And he said that if someone knew his

address in Haiti, the people who he owed money to could find

him. Priva asserted that the Haitian government could not pro-

tect him because it was not able to “even protect itself,” as civil-

ians in the country often killed police officers and government of-

ficials. He stated that there was no other reason he feared to re-

turn to Haiti and that there was nowhere in Haiti he could live

and be safe.

As to relief under the Convention Against Torture, Priva

stated that he had never experienced any mistreatment, threats,

or harm from anyone in the Haitian government, military, or po-

lice until he “got involved in this situation,” referencing the

threats from the “police officers.” He also stated a “minister”

working for the government had threatened to kill him because of

the owed money and that he was afraid he could be harmed by

public officials in the future. And he claimed that if he reported

the threats, things would get “even worse” because Haitian offi-

cials and police were “corrupt.” But Priva stated he never report-

ed a crime to the police in Haiti where they refused to help him.

The asylum officer asked Priva if he knew of anyone who had re-

ported a crime to the police in Haiti, and he stated that “[i]t be-

came worse for them,” that his friend reported to the police that

his girlfriend was kidnapped by a group of people and the police

had killed him because the kidnappers worked for the police. Pri-

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20-12521 Opinion of the Court 7

va also stated he was never threated or harmed—and did not fear

being threatened or harmed—in Haiti because of his race, ethnici-

ty, religion, political beliefs, or nationality. And he was not a

member of any groups or organizations in Haiti.

Second Reasonable Fear Interview

On May 28, 2020, Priva attended another reasonable fear

interview. Priva’s counsel was present telephonically. During

this interview, Priva’s counsel asked Priva when he was first

threatened, which Priva said occurred when he was in detention

for his visa fraud conviction. During his questioning of Priva, Pri-

va’s counsel did not introduce any evidence of country conditions

in Haiti.

Third and Final Reasonable Fear Interview

On June 3, 2020, Priva had a final reasonable fear interview,

where counsel was again present telephonically. The asylum of-

ficer asked Priva if he ever was directly threatened by any of the

people he feared. Priva replied that he had directly spoken, with

help from a friend, to a man named “Jon,” who had previously

sent him money. Jon called Priva “a thief” because he owed him

money. Jon also stated that “he will make sure he will get his

money” using “every single tool” if Priva was sent back to Haiti

and that “they” would terminate Priva. Priva said that Jon, who

was a police officer for seventeen years, was fired because he mis-

takenly killed a person and that Jon reminded him of the incident.

Priva also said that Jon’s brother, a police officer in Haiti, knew he

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8 Opinion of the Court 20-12521

owed Jon money and claimed that Jon and his brother could “use

every single tool to finish” him, as they had done it before. Priva

understood “tools” to mean that Jon had a gun. And he stated

that Jon still had close connections to the Haitian police.

Asylum Officer’s Reasonable Fear Findings

Following the final interview, the asylum officer made the

following reasonable fear findings: the asylum officer found Priva

credible but concluded there was “no reasonable fear of persecu-

tion established and no reasonable fear of tortured established.”

In the “Reasonable Fear Determination Checklist and Written

Analysis,” the asylum officer found that Priva “ha[d] not demon-

strated that the harm he fears in the future is on account of a pro-

tected ground,” as Priva feared “he will be killed because he was

paid to help the people he fears with visa’s [sic] and he was unable

to provide them with what they paid him for”—which was not a

protected ground. 2 While several threats were from police offic-

ers and other public officials, the asylum officer found that Priva

2 We note that the asylum officer’s checklist is not entirely consistent as to

the torture finding. In one area of the checklist, the asylum officer checked

“Yes” as to whether Priva established a reasonable possibility of torture. But

immediately below this section of the checklist, the officer wrote his written

analysis explaining why Priva “ha[d] not demonstrated that a public official

would consent or acquiesce to his future torture if he returns to Haiti.” Giv-

en this subsequent written explanation and the conclusion in the reasonable

fear finding that there was “no reasonable fear of torture established,” we

conclude that the asylum officer did not find Priva had established a reasona-

ble possibility of torture.

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20-12521 Opinion of the Court 9

could not provide evidence showing that they were acting under

“the color of law.” Rather, Priva’s testimony showed that those

officers and officials were acting as private individuals in threaten-

ing Priva, noting that the “tools” those individuals were using to

threaten him—locating him and his family by using Facebook and

finding out whether he was deported on the Haitian news—were

“insufficient to indicate” that “the police and other public officials

[Priva] fears . . . would be acting in their official capacities and not

as private individuals.” Additionally, the asylum officer found

Priva had not shown that a public official would consent or acqui-

esce to his future harm, finding that (1) his claims about the Hai-

tian police were not supported by specific evidence, (2) Priva had

never reported crimes, including these threats, to the Haitian po-

lice and had them refuse to help, and (3) “Jon,” the former police

officer threatening Priva, was fired for an unlawful killing, show-

ing that Haitian police would act against their own officers.

Priva requested a review by an immigration judge of the

asylum officer’s negative reasonable fear determination. Priva

was served a notice of the referral to the immigration judge. The

notice, which was read and explained to Priva, provided that Pri-

va “may be represented in this proceeding, at no expense to the

government, by an attorney or other individual authorized and

qualified to represent persons before an Immigration Court” and

that, if Priva wished to be represented, his attorney should appear

with him at the hearing. The same day, Priva was served with a

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10 Opinion of the Court 20-12521

notice scheduling his hearing for June 9, 2020, and again inform-

ing Priva he may be represented by counsel.

At the June 9, 2020, hearing, Priva appeared without coun-

sel. The immigration judge noted that Priva was appearing pro se

but did not inquire further into Priva’s lack of counsel. The im-

migration judge noted that he had asked Priva before the hearing

commenced what language he wanted the hearing conducted in,

and Priva on the record confirmed that he wanted the hearing

conducted in English. The immigration judge took testimony

from Priva and confirmed that Priva understood the basis of the

hearing. The immigration judge further confirmed that Priva

feared being returned to Haiti based only on the threats from

people to whom he owed money. Before making his finding, the

immigration judge asked Priva if there was “any other reason

why [Priva] believe[d] someone might harm [him] if [he went]

back to Haiti?” In response, Priva testified “[j]ust because the

money I owe them.” The immigration judge then found that Pri-

va had not established a reasonable possibility he would be perse-

cuted based on a protected ground nor a reasonable possibility he

would be tortured if returned to Haiti. The immigration judge

stated that his decision was a final order and that no administra-

tive appeal was available, but he noted that Priva could petition

for review with this Court. The immigration judge also stated

that while he believed what Priva said, those statements did not

constitute grounds for withholding of removal or CAT relief. Fol-

lowing his ruling, the immigration judge issued an order of re-

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20-12521 Opinion of the Court 11

moval, finding that Priva had not established a reasonable proba-

bility that he would be persecuted based on a protected ground or

a reasonable possibility he would be tortured in the country of

removal.

Priva filed this petition for review.

II. ANALYSIS

In his petition, Priva contends that his due process rights

were violated during his expedited removal proceedings. Priva

argues that he had the right to counsel during his reasonable fear

proceedings before the immigration judge and also argues that

the immigration judge violated this right by failing to obtain a

knowing and voluntary waiver of that right from Priva. Priva al-

so argues that he need not show that he was substantially preju-

diced by the violation of the right to counsel but alternatively

contends that he has shown substantial prejudice. Priva further

contends that he was denied a full and fair hearing because the

immigration judge failed to provide an adequate explanation of

the proceedings. And Priva lastly contends that the immigration

judge erred in upholding the asylum officer’s finding that there

was not a reasonable possibility he would be tortured if returned

to Haiti. 3 We address these arguments in turn.

3 Priva does not challenge the immigration judge’s concurrence with the asy-

lum officer’s finding that he did not establish a reasonable fear of persecution

based on a protected ground for withholding of removal under the INA.

Priva has therefore abandoned any challenge to the denial of his withholding

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12 Opinion of the Court 20-12521

A. Reasonable Fear Proceedings

Reasonable fear proceedings are part of the expedited re-

moval proceedings for “aliens convicted of committing aggravat-

ed felonies” set forth in 8 U.S.C. § 1228. While § 1228 does not

mention “reasonable fear proceedings,” the Attorney General

promulgated the regulations establishing reasonable fear proceed-

ings—8 C.F.R. §§ 208.31 and 238.1(f)(3)—in 1999 under its author-

ity to promulgate such regulations under § 1228(b)(4). See Regu-

lations Concerning the Convention Against Torture, 64 Fed. Reg.

8478, 8485 (Feb. 19, 1999).

The purpose of the “reasonable fear screening process” is

“to provide for the fair resolution of claims both to withholding

under [the INA], and to protection under the [CAT] without un-

duly disrupting the operation of” the “streamlined administrative

removal processes for aggravated felons under” INA § 238(b) and

for aliens subject to reinstatement of a previous removal order

under INA § 241(a)(5). Regulations Concerning the Convention

Against Torture, 64 Fed. Reg. at 8485. 8 C.F.R. § 238.1(b)(2) pro-

vides that removal proceedings commence upon personal service

on the alien of a notice of intent to issue a FARO, explaining the

charges against the alien. The alien then has the option to seek

withholding of removal. Id. § 238.1(c)(1). If the alien seeks with-

holding of removal because of a fear of torture, he is referred to

of removal claim. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2

(11th Cir. 2005).

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20-12521 Opinion of the Court 13

an asylum officer for a reasonable fear interview and determina-

tion. Id. § 208.31(a)–(c). When an alien is referred to an asylum

officer for a reasonable fear determination, the officer “conduct[s]

the interview in a non-adversarial manner, separate and apart

from the general public,” where the alien “may be represented by

counsel . . . and may present evidence . . . relevant to the possibil-

ity of persecution or torture.” Id. § 208.31(c). At the end of the

interview, the asylum officer reviews with the alien a “summary

of the material facts” and provides the alien with “an opportunity

to correct errors therein.” Id.

To succeed in establishing a reasonable fear of torture, the

alien must establish “a reasonable possibility that he or she would

be tortured in the country of removal.” Id. If the asylum officer

concludes that the alien has met the reasonable fear standard, the

officer must refer the case to an immigration judge “for full con-

sideration” of the alien’s eligibility for withholding of removal,

which is conducted with all procedural requirements attendant to

removal proceedings, including appeals to the Board of Immigra-

tion Appeals. Id. § 208.31(e); see also id. § 208.16. But if an officer

concludes that the alien does not have a reasonable fear of tor-

ture, then the alien may request that an immigration judge review

the officer’s “negative determination.” 8 C.F.R. § 208.31(f )–(g). If

the alien requests a review by an immigration judge, then the

immigration judge is provided with the “record of determination,

. . . the asylum officer’s notes, the summary of the material facts,

and other materials upon which the determination was based.”

Id. § 208.31(g). If the immigration judge “concurs with the asy-

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14 Opinion of the Court 20-12521

lum officer’s determination that the alien does not have a reason-

able fear of . . . torture,” the alien is removed. Id. § 208.31(g)(1).

The regulations provide that an “alien may be represented

by counsel or an accredited representative . . ., at no expense to

the Government,” during the reasonable fear interview before the

asylum officer. Id. § 208.31(c). But the regulations are silent

about any right or privilege to counsel during the immigration

judge’s review of the asylum officer’s negative determination.

See generally id. § 208.31(g).

B. Right to Counsel and Substantial Prejudice

Priva first contends that he is entitled to a new hearing be-

fore the immigration judge because he had a right to counsel in

his reasonable fear proceedings under the Fifth Amendment to

the United States Constitution. In support of his argument, Priva

relies on Zuniga v. Barr, 946 F.3d 464, 468–70 (9th Cir. 2019), in

which the Ninth Circuit found that aliens subject to the expedited

removal proceedings under 8 U.S.C. § 1228 had “a right to coun-

sel” in “reasonable fear review proceedings,” see 8 C.F.R.

§ 208.31. In response, the government asserts that § 1228’s plain

language does not provide aliens with the right to counsel in rea-

sonable fear proceedings. As discussed in Section II.A., § 1228

contains no language on reasonable fear proceedings; nor would

it, as the statute was enacted before regulations involving those

types of proceedings were promulgated to conform to the CAT.

See Regulations Concerning the Convention Against Torture, 64

Fed. Reg. at 8485; 8 C.F.R. § 238.1. Although the regulations in-

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20-12521 Opinion of the Court 15

volving reasonable fear screening proceedings state that an alien

“may be represented by counsel” at the screening process’ first

step—the interview with an asylum officer, 8 C.F.R. § 208.31(c)—

the regulations are silent on whether an alien may have counsel

present at the second step of the screening process before the

immigration judge, id. § 208.31(g).

That said, we need not decide whether an alien is entitled

to counsel before an immigration judge in reasonable fear pro-

ceedings under § 1228 because, even if Priva had such a right to

counsel, under our existing precedent, Priva must show substan-

tial prejudice and he has failed to do so. Indeed, although

“[a]liens are entitled to due process of law in deportation hear-

ings” under the Fifth Amendment, we have long held in this Cir-

cuit that “an alien must show substantial prejudice” to prevail “on

a due process challenge to a deportation proceeding.” Ibrahim v.

U.S. INS, 821 F.2d 1547, 1550 (11th Cir. 1987); see also, e.g., In-

drawati v. U.S. Att’y Gen., 779 F.3d 1284, 1299 (11th Cir. 2015);

Lapaix v. U.S. Att’y Gen., 605 F.3d 1138, 1143 (11th Cir. 2010); De

Sandoval v. U.S. Att’y Gen., 440 F.3d 1276, 1285 (11th Cir. 2006);

Garcia v. Att’y Gen. of U.S., 329 F.3d 1217, 1222 (11th Cir. 2003);

Mullen-Cofee v. INS, 976 F.2d 1375, 1380 (11th Cir. 1992). For

example, in Flores-Panameno v. U.S. Att’y Gen., 913 F.3d 1036

(11th Cir. 2019), we held that while “8 U.S.C. § 1362 provides that

aliens have the right to retain private counsel in their removal

proceedings . . . [and] the right to effective assistance of counsel,”

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16 Opinion of the Court 20-12521

the alien must also show prejudice. Id. at 1040; see also Mejia

Rodriguez v. Reno, 178 F.3d 1139, 1148 (11th Cir. 1999).

Additionally, in Frech v. U.S. Att’y Gen., 491 F.3d 1277

(11th Cir. 2007), we held that “[w]hile deprivation of the right to

counsel . . . in a removal proceeding would, under certain circum-

stances, constitute a due process violation, [the petitioner had]

not shown that he was substantially prejudiced by any due pro-

cess violation in [the] case.” Id. at 1282 (emphasis added). Simi-

larly, in De Sandoval, we considered the petitioner’s argument

that 8 C.F.R. § 241.8—regarding procedures for reinstatement of

removal orders—violated her procedural due process rights be-

cause the regulation, among other things, did not “provide her

the right . . . to be represented by counsel.” 440 F.3d at 1285. We

concluded that “[t]o establish a procedural due process violation,

an alien must show the government’s asserted error caused her

substantial prejudice,” and we also concluded in De Sandoval that

the petitioner “fail[ed] to show how the additional procedures she

demands would have changed the result in her case.” Id. Addi-

tionally, in Mullen-Cofee, we noted that “to establish [a] due pro-

cess violation from denial of right to counsel at deportation pro-

ceedings, [the] alien must establish that ‘presence of counsel

might have affected the outcome.’” 976 F.2d at 1380 (quoting

Cobourne v. INS, 779 F.2d 1564, 1566 (11th Cir. 1986)).

Despite this Circuit’s long-standing precedent, Priva cites

to out-of-circuit decisions supporting his argument that substan-

tial prejudice is not required. But “under this Court’s prior-panel-

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20-12521 Opinion of the Court 17

precedent rule, ‘a prior panel’s holding is binding on all subse-

quent panels unless and until it is overruled or undermined to the

point of abrogation by the Supreme Court or by this court sitting

en banc.’” See In re Lambrix, 776 F.3d 789, 794 (11th Cir. 2015)

(quoting United States v. Archer, 531 F.3d 1347, 1352 (11th Cir.

2008)). Accordingly, we are bound by this Circuit’s prior holdings

that an alien must show that a due process challenge caused him

or her substantial prejudice. Therefore, like other due process

challenges to removal proceedings, including those based on an

alien’s right to counsel, we must determine whether Priva was

substantially prejudiced by the lack of counsel at his June 9, 2020,

hearing before the immigration judge.

Based on the record evidence before us, we conclude that

Priva has not shown substantial prejudice. Under the substantial

prejudice standard, the petitioner “must demonstrate that, in the

absence of the alleged violations, the outcome of the proceeding

would have been different.” Indrawati, 779 F.3d at 1299 (quoting

Lapaix, 605 F.3d at 1143). Priva contends that he was substantial-

ly prejudiced by his lack of counsel at the hearing before the im-

migration judge in his reasonable fear proceedings in several

ways. He first argues that he was “deprived . . . of his opportunity

to apply for relief under the [CAT], which was likely to be grant-

ed, based on the fact that he has a reasonable fear of torture due

to death threats by senior government officials and police offic-

ers.” Priva further contends that: (1) the immigration judge failed

to distinguish between the forms of relief for withholding of re-

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18 Opinion of the Court 20-12521

moval under the INA, which requires applicants to establish per-

secution or torture based on a protected ground, and for CAT,

which does not require torture to be based on a protected

ground; and (2) if Priva had counsel at the hearing, the immigra-

tion judge would have understood “the difference” between the

two standards.

We conclude that these arguments lack merit. Reviewing

the hearing transcript, the immigration judge specifically stated, “I

find that you’ve not established a reasonable possibility that you

would be persecuted on the basis of a protected ground, or

there’s . . . not a reasonable possibility that you would be tortured

if you return to Haiti.” The record evidence therefore shows that

the immigration judge did not make his finding on torture based

on a protected ground, that is, those grounds set forth for with-

holding of removal claims under the INA. Nor does Priva point

to anything else in the record suggesting that the immigration

judge improperly conflated the two standards. Indeed, the record

evidence shows that Priva had the opportunity to apply for CAT

relief (and did so) and that the asylum officer asked Priva ques-

tions related to CAT relief during the several reasonable fear in-

terviews. And Priva was represented by counsel at each of those

reasonable fear interviews before the asylum officer.

Priva next argues that he was substantially prejudiced “be-

cause it is questionable whether the [immigration judge] had read

the record prepared by the [asylum officer] before the proceed-

ings.” Priva speculates that the immigration judge did not know

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20-12521 Opinion of the Court 19

the “material facts” of his case because the judge, when referenc-

ing the “various people inside of Haiti . . . that [Priva] owed mon-

ey to,” did not specifically mention they were police officers or

government officials. We conclude that there is nothing in the

record suggesting that the immigration judge did not review the

record before him in making his decision as to Priva’s CAT claim.

Priva further contends that neither the asylum officer nor

the immigration judge inquired into country conditions, which

Priva claims was required under 8 C.F.R. § 208.30(e)(3). Priva as-

serts that, if he had counsel before the immigration judge, “the

obvious flaws would undoubtedly have been drawn to the IJ’s at-

tention and the outcome would have been different.” But Priva

did have counsel before the asylum officer in each of his reasona-

ble fear interviews, and Priva did not present evidence of country

conditions in Haiti to the officer. Priva does not explain why he

failed to present country condition evidence to the asylum officer

during any of these reasonable fear interviews where he was rep-

resented by counsel. Also, the relevant regulation, 8 C.F.R.

§ 208.31(g), does not indicate that the immigration judge would

have to review new evidence that Priva failed to present to the

asylum officer during the reasonable fear interviews. In other

words, Priva has failed to show how the presence of counsel at

the hearing before the immigration judge to present country con-

USCA11 Case: 20-12521 Date Filed: 05/12/2022 Page: 20 of 33

20 Opinion of the Court 20-12521

dition evidence would have changed the proceedings’ outcome. 4

See Indrawati, 779 F.3d at 1299.

We therefore find no merit in Priva’s constitutional claims

because he has not shown that any purported violations caused

him substantial prejudice.

C. Explanation of the Proceedings

Priva also briefly argues that he was denied a “full and fair

hearing” before the immigration judge because the judge “failed

to provide an adequate explanation of the procedures, including

what [he] had to prove to establish his basis for the CAT relief,

and to inquire into [the] basis for the CAT relief.” We disagree.

Due process of law in deportation proceedings “is satisfied

only by a full and fair hearing,” but the “alien must show substan-

tial prejudice.” Ibrahim, 821 F.2d at 1550. That said, there is no

indication in the record that Priva did not understand the pro-

ceedings. At the hearing, the immigration judge asked Priva be-

fore the hearing commenced what language he wanted the hear-

ing conducted in, and Priva on the record confirmed that he

wanted the hearing conducted in English. The immigration judge

4 As explained in Section II.D, we conclude that, under the substantial evi-

dence standard, see Nasrallah v. Barr, 140 S. Ct. 1683, 1692 (2020), the immi-

gration judge did not err in upholding the asylum officer’s negative reasona-

ble fear determination on Priva’s CAT claim because substantial evidence in

the administrative record supports that determination.

USCA11 Case: 20-12521 Date Filed: 05/12/2022 Page: 21 of 33

20-12521 Opinion of the Court 21

then stated that Priva had “already been ordered to be removed

from the United States,” that “an asylum officer concluded that

[he did] not have a reasonable fear of persecution or torture,” and

that Priva had “requested that the asylum officer’s decision be re-

viewed.” The immigration judge then asked Priva if that was his

“understanding of why [they were there],” to which Priva replied,

“Yes. Yes, sir.”

Priva also received written documents explaining the pro-

cess of the hearing and that the immigration judge would be de-

termining whether he agreed with “the [asylum officer’s] deter-

mination that [Priva] d[id] not have a reasonable fear of persecu-

tion or torture.” Additionally, Priva has not explained or shown

how the outcome would have been different if he had “been

properly informed.” Indeed, Priva has not identified how he

would have presented his case differently before the immigration

judge. We therefore conclude that this argument lacks merit.

D. Whether Priva Failed to Establish a Reasonable Fear of Tor-

ture in Haiti

Finally, Priva contends that the immigration judge erred in

upholding the asylum officer’s finding that there was “no reason-

able fear of torture established” as to his claim for CAT relief. We

disagree. Although we generally lack jurisdiction to review factu-

al challenges to a final order of removal against an alien who is

removable for having committed an aggravated felony, “we have

jurisdiction to review factual challenges to an order denying pro-

tection under the [CAT] to that same alien.” Farah v. U.S. Att’y

USCA11 Case: 20-12521 Date Filed: 05/12/2022 Page: 22 of 33

22 Opinion of the Court 20-12521

Gen., 12 F.4th 1312, 1327 (11th Cir. 2021). In reviewing a factual

challenge to the denial of CAT relief, we apply the substantial ev-

idence standard of review. 5 Nasrallah v. Barr, 140 S. Ct. 1683,

1692 (2020). Under the substantial evidence standard, which is

highly deferential, the immigration judge’s “findings of fact are

conclusive unless any reasonable adjudicator would be compelled

to conclude to the contrary.” Id. (quoting 8 U.S.C.

§ 1252(b)(4)(B)); accord Antipova v. U.S. Att’y Gen., 392 F.3d

1259, 1261 (11th Cir. 2004) (“Under this highly deferential stand-

ard of review, the IJ’s decision must be deferred to as supported

by substantial evidence, unless the evidence compels a reasonable

fact finder to find otherwise.”). Because the standard is highly

deferential, we will reverse an agency’s decision only if the record

compels a contrary finding. Antipova, 392 F.3d at 1261. We also

review the record evidence in the light most favorable to the

agency’s decision and draw all reasonable inferences in favor of

that decision. Silva v U.S. Att’y Gen., 448 F.3d 1229, 1236 (11th

Cir. 2006).

5 We have not decided what standard of review applies to an immigration

judge’s negative reasonable fear determination. The government argues

that, in the case of an immigration judge’s concurrence with an asylum of-

ficer’s negative reasonable fear determination, this Court should apply the

more deferential “facially legitimate and bona fide reason” standard of re-

view set forth in Kleindienst v. Mandel, 408 U.S. 753 (1972), instead of the

more demanding substantial evidence standard. We need not decide which

standard of review applies because, even if we review for substantial evi-

dence, the record does not compel an outcome in Priva’s favor.

USCA11 Case: 20-12521 Date Filed: 05/12/2022 Page: 23 of 33

20-12521 Opinion of the Court 23

As a general matter, to qualify for CAT relief, “an alien

must establish that he will more likely than not be tortured if re-

moved to his country.” Farah, 12 F.4th at 1327. In the context of

the screening process for CAT claims raised in reasonable fear

proceedings, however, “[t]he alien shall be determined to have a

reasonable fear of . . . torture if the alien establishes a reasonable

possibility that he or she would be . . . tortured in the country of

removal.” See 8 C.F.R. § 208.31(c). The applicant bears the bur-

den of proof for establishing entitlement to CAT relief. See

Reyes-Sanchez v. U.S. Att’y Gen., 369 F.3d 1239, 1242 (11th Cir.

2004); Lingeswaran v. U.S. Att’y Gen., 969 F.3d 1278, 1293 (11th

Cir. 2020).

In the CAT context, “[t]orture must be ‘inflicted by, or at

the instigation of, or with the consent or acquiescence of, a public

official acting in an official capacity or other person acting in an

official capacity.’” Farah, 12 F.4th at 1327 (quoting 8 C.F.R.

§ 1208.18(a)(1)); accord Lingeswaran, 969 F.3d at 1293; see also

United States v. Belfast, 611 F.3d 783, 804, 808 (11th Cir. 2010)

(explaining that, under CAT, “there is no distinction between the

meaning of the phrases ‘under the color of law’ and in ‘an official

capacity’”). “Acquiescence ‘requires that the public official, prior

to the activity constituting torture, have awareness of such activi-

ty and thereafter breach his or her legal responsibility to intervene

to prevent such activity.’” Lingeswaran, 969 F.3d at 1293 (quoting

8 C.F.R. § 208.1[8](a)(7)).

USCA11 Case: 20-12521 Date Filed: 05/12/2022 Page: 24 of 33

24 Opinion of the Court 20-12521

We conclude that Priva’s claim fails under the substantial

evidence standard. See Antipova, 392 F.3d at 1261. The record

evidence does not compel a finding that Priva established a rea-

sonable possibility of torture at the instigation of, or with the con-

sent of, government officials acting in an official capacity. See 8

C.F.R. § 208.18(a)(1)); Antipova, 392 F.3d at 1261. While the asy-

lum officer noted that some individuals threatening Priva because

he owed them money for failing to obtain fraudulent visas to the

United States were Haitian “police officers and other public offi-

cials,” the asylum officer found that Priva had failed to provide

“specific and persuasive evidence to indicate that [those] individu-

als acted or would act under the color of law,” as Priva’s testimo-

ny “indicate[d] that the police and other public officials that made

threats toward [him] were acting as private individuals.” The asy-

lum officer also noted that Priva testified those individuals “used

Facebook to locate his family and friends to relay their threats”

and would “be able to locate him because people deported

through Haiti are on the news.” But because those “tools” were

not “only at the disposal of the police or public officials,” the asy-

lum officer found no indication the individuals would use their

official positions to harm Priva.

The officer further concluded that Priva failed to show a

public official would consent or acquiesce to his future harm. In

noting Priva’s testimony that Haitian police were corrupt and that

reports to a higher officer or official could make things “worse,”

the officer determined that Priva failed to provide specific evi-

USCA11 Case: 20-12521 Date Filed: 05/12/2022 Page: 25 of 33

20-12521 Opinion of the Court 25

dence in support of his belief. For example, Priva had never re-

ported the threats to the Haitian police and had never reported a

general crime for which the police refused to help him. And the

officer noted that “Jon,” the former police officer who threatened

Priva, had been fired by the Haitian police department for an un-

lawful killing, suggesting that the Haitian police were “willing to

take action against their own officers.” The immigration judge

reviewed the asylum officer’s findings and similarly concluded

that, as to Priva’s application for CAT relief, there was not a rea-

sonable possibility that Priva would be tortured if returned to

Haiti.

Under our highly deferential review standard, we conclude

that substantial evidence supports the asylum officer’s and immi-

gration judge’s determinations. While Priva testified that some

individuals threatening him were Haitian police officers or public

officials, Priva did not offer any examples to show that those of-

ficers and officials were threatening him in their official capacities

or under the color of law. Rather, Priva testified that the individ-

uals were threatening him through Facebook and searching for

him via Google or by watching the news in Haiti. And during his

interview, Priva stated that he did not know if any of the 100 peo-

ple he owed money to had killed other individuals. A reasonable

fact finder therefore could conclude that substantial evidence

supported the determination that those officers and officials were

not acting in their official capacities.

USCA11 Case: 20-12521 Date Filed: 05/12/2022 Page: 26 of 33

26 Opinion of the Court 20-12521

Additionally, although Priva generally testified that the

Haitian police were corrupt and there were high levels of violence

in Haiti, as well as speculated that it could be worse for him to re-

port the threats, Priva admitted that he had never reported a

crime to the Haitian police for which they refused to help him.

Priva further provided an example—“Jon”—in which a former

police officer was fired from the police department following an

unlawful killing, evidence suggesting that the Haitian police acts

against its officers who commit unlawful acts instead of acquiesc-

ing to the unlawful conduct. Cf. Reyes-Sanchez, 369 F.3d at 1243.

Thus, there is substantial evidence to support the finding that

Haitian public officials would not consent or acquiesce to Priva’s

future harm if he reported the threats he received. 6

We thus conclude that the immigration judge reasonably

found that Priva’s assertions failed to establish his torture claim

and the record does not compel a contrary finding. We thus fur-

ther conclude that substantial evidence supports the asylum of-

ficer’s and immigration judge’s negative reasonable fear determi-

nation on Priva’s claim for CAT relief.

III. CONCLUSION

For all these reasons, we deny Priva’s petition.

6 While Priva contends that the asylum officer and immigration judge ig-

nored the country conditions in Haiti, Priva had the burden of proof to es-

tablish entitlement to relief under the CAT, see Reyes-Sanchez, 369 F.3d at

1242, and he (and his counsel) failed to offer reports on Haiti’s conditions at

any stage of the reasonable fear proceedings.

USCA11 Case: 20-12521 Date Filed: 05/12/2022 Page: 27 of 33

20-12521 Opinion of the Court 27

PETITION DENIED.

USCA11 Case: 20-12521 Date Filed: 05/12/2022 Page: 28 of 33

20-12521 WILSON, J., Dissenting 1

WILSON, Circuit Judge, dissenting:

This appeal provides two questions that have yet to be di-

rectly answered in a published opinion in the Eleventh Circuit: (1)

whether there is a statutory right to counsel in a reasonable fear

review proceeding before an Immigration Judge (IJ); and (2)

whether a petitioner alleging the violation of the statutory right to

counsel must show that the purported error caused substantial

prejudice. Upon review, and with the benefit of oral argument, I

agree with Priva that there is a statutory right to counsel in reason-

able fear review proceeding before an IJ. I further agree with Priva

that where a noncitizen has been denied the right to counsel in an

immigration proceeding, he or she is not required to demonstrate

substantial prejudice to obtain relief. I would therefore vacate the

decision of the IJ for the following reasons.

I.

The majority contends that it need not address whether a

petitioner has a statutory right to counsel before an IJ during a rea-

sonable fear review proceeding provided for in 8 C.F.R. § 208.31(g).

This question, however, warrants review to clarify noncitizens

rights during a reasonable fear review proceeding. I agree with

Priva that during such a proceeding there is indeed a statutory right

to counsel which stems from the Fifth Amendment as explained by

the Ninth Circuit in Zuniga v. Barr, 946 F.3d 464, 469–70 (9th Cir.

2019) (per curiam) (holding that the expedited removal statute

clearly “contemplates a right to counsel in removal proceedings in-

itiated under 8 U.S.C. § 1228, which include reasonable fear review

USCA11 Case: 20-12521 Date Filed: 05/12/2022 Page: 29 of 33

2 WILSON, J., Dissenting 20-12521

proceedings”). I find the opinion highly persuasive and would

adopt its statutory interpretation and reasoning in full.

Congress has provided that in “any removal proceedings be-

fore an [IJ],” a noncitizen “shall have the privilege of being repre-

sented” by counsel. 8 U.S.C. § 1362. Section 1228, which governs

the implementation of expedited removal of noncitizens, provides

that reasonable effort shall be made to ensure a noncitizen’s access

to counsel and right to counsel under § 1362 are not impaired. Id.

§ 1228(a)(2). Furthermore, § 1228(b) explicitly provides that a

noncitizen subject to removal proceedings “shall have the privilege

of being represented” by counsel. Id. § 1228(b)(4)(B).

Although the legal provisions requiring the government to

conduct reasonable fear review proceedings are set forth in regula-

tions, not in § 1228 itself, those regulations were promulgated pur-

suant to the Attorney General’s authority under § 1228 and are thus

part of expedited removal proceedings. Regulations Concerning

the Convention Against Torture, 64 Fed. Reg. 8478, 8493–94 (Feb.

19, 1999) (citing Immigration and Nationality Act § 238(b), 8.

U.S.C. § 1228 as the source of authority for regulations regarding

expedited removal proceedings and reasonable fear of persecution

or torture determinations). As a result, the reasonable fear pro-

ceedings to which Priva was subject “are in turn part of those ex-

pedited removal proceedings” provided for by § 1228(b). Zuniga,

946 F.3d at 468.

USCA11 Case: 20-12521 Date Filed: 05/12/2022 Page: 30 of 33

20-12521 WILSON, J., Dissenting 3

II.

The majority further contends that a petitioner who demon-

strates any procedural due process violation must nevertheless

show the violation caused substantial prejudice to obtain relief.

This interpretation is too broad. Especially where Priva raises a

question of first impression before us which has resulted in a circuit

split: whether the specific procedural violation of the denial of

counsel requires a showing of prejudice.

I agree with Priva that a petitioner need not show prejudice

or substantial prejudice where he or she demonstrates a due pro-

cess claim specifically relating to the denial of the statutory right to

counsel. As provided by the majority, we have required a showing

of substantial prejudice when confronted with a variety of minor

procedural due process claims. See, e.g., Indrawati v. U.S. Att’y

Gen., 779 F.3d 1284, 1299–1300 (11th Cir. 2015) (finding no due

process violation on claim that IJ impermissibly admitted and relied

on evidence); Lapaix v. U.S. Att’y Gen., 605 F.3d 1138, 1144 (11th

Cir. 2010) (per curiam) (finding no due process violation on claim

that IJ erred in considering certain evidence where petitioner did

not provide certain testimony); De Sandoval v. U.S. Att’y Gen., 440

F.3d 1276, 1285–86 (11th Cir. 2006) (finding no due process viola-

tion where petitioner admitted all necessary facts to warrant rein-

statement of existing removal order and procedure provided under

statute did not afford her an appearance before an IJ); Ibrahim v.

INS, 821 F.2d 1547, 1550 (11th Cir. 1987) (finding no due process

USCA11 Case: 20-12521 Date Filed: 05/12/2022 Page: 31 of 33

4 WILSON, J., Dissenting 20-12521

violation where petitioner was absent from his own deportation

hearing). When confronted with a more salient due process claim

alleging ineffective assistance of counsel claim, we require a slightly

different showing of: (1) prejudice; and (2) counsel’s deficient per-

formance. See, e.g., Flores-Panameno v. U.S. Att’y Gen., 913 F.3d

1036, 1040 (11th Cir. 2019). The instances of procedural due pro-

cess violations above, however, are distinctly different from the

procedural due process violation arising from the denial of the stat-

utory right to counsel.

Although we have touched upon due process claims impli-

cating the right to counsel, we have not directly decided whether a

petitioner who was improperly denied a statutory right to counsel

in an immigration proceeding must demonstrate that the denial re-

sulted in either prejudice or substantial prejudice. Frech v. U.S.

Att’y Gen., 491 F.3d 1277, 1281–82 (11th Cir. 2007) (finding no due

process violation where petitioner argued that IJ’s denial of a

change of venue violated his right to counsel even though peti-

tioner discharged attorney weeks before the final merits hearing);

Cobourne v. INS, 779 F.2d 1564, 1566 (11th Cir. 1986) (per curiam)

(finding no due process violation where the petitioner voluntarily

and knowingly waived his right to counsel). This case presents us

with an opportunity to clearly address this question.

The circuits are split on the question of whether a petitioner

must show prejudice to prevail on a claim that the statutory right

to counsel was denied. Five circuits recognize that representation

by counsel in immigration proceedings is a statutory right of such

USCA11 Case: 20-12521 Date Filed: 05/12/2022 Page: 32 of 33

20-12521 WILSON, J., Dissenting 5

significance that a denial of the right requires no showing of preju-

dice due to the fundamental importance of the right. Montes-

Lopez v. Holder, 694 F.3d 1085, 1092 (9th Cir. 2012) (“[D]enial of

counsel more fundamentally affects the whole of a proceeding than

ineffective assistance of counsel . . . . [T]he absence of counsel can

change [the noncitizen’s] strategic decisions, prevent him or her

from making potentially-meritorious legal arguments, and limit

the evidence the [noncitizen] is able to include in the record.”);

Leslie v. U.S. Att’y Gen., 611 F.3d 171, 181 (3d Cir. 2010) (“The

right to counsel is a particularly important procedural safeguard

because of the grave consequences of removal.”); Castaneda-Del-

gado v. INS, 525 F.2d 1295, 1302 (7th Cir. 1975) (“When no lawyer

appears to represent the defendant . . . there is no room for nice

calculations as to the amount of prejudice flowing from the de-

nial.”) (internal quotation marks omitted); Montilla v. INS, 926

F.2d 162, 169 (2d Cir. 1991); Cheung v. INS, 418 F.2d 460, 464 (D.C.

Cir. 1969).

In contrast, four circuits require a petitioner to show preju-

dice when alleging a due process violation related to the denial of

counsel and do not distinguish between Fifth Amendment proce-

dural due process claims and statutory right to counsel claims.

Njoroge v. Holder, 753 F.3d 809, 812 (8th Cir. 2014); Ogbemudia

v. INS, 988 F.2d 595, 598 (5th Cir. 1993); Michelson v. INS, 897 F.2d

465, 468 (10th Cir. 1990); Farrokhi v. INS, 900 F.2d 697, 702 (4th

Cir. 1990). “Instead, they examine alleged violations of the right to

counsel more generically as a matter of procedural due process,

USCA11 Case: 20-12521 Date Filed: 05/12/2022 Page: 33 of 33

6 WILSON, J., Dissenting 20-12521

thereby failing to recognize the distinctive nature of the statutory

right to counsel.” Hernandez Lara v. Barr, 962 F.3d 45, 59 (1st Cir.

2020) (Lipez, J., concurring) (providing that the First Circuit should

adopt the majority view but not deciding the issue).

I would join the majority of circuits in concluding that no

showing of prejudice is required when a petitioner establishes the

denial of the statutory right to counsel. The fundamental im-

portance of the right to counsel, even where statutory, is too great.

Because I would find that Priva was entitled to such a right

throughout his reasonable fear proceedings under the reasoning in

Zuniga and that Priva did not waive this right before the IJ, I would

extend Priva relief because he need not show substantial prejudice

or prejudice to obtain relief.

For the reasons herein, I respectfully dissent.