Petition for Review of a Decision of the Board of Immigration
WILLIAM PRYOR, MARTIN, and BRANCH, Circuit Judges.
WILLIAM PRYOR, CIRCUIT JUDGE:
application requires us to decide whether Sean Anthony Blake,
a Jamaican citizen and convicted drug trafficker who has
illegally entered the United States three times, is entitled
to an emergency stay of removal. We conclude that he is not
and deny his motion to stay removal. Although Blake has
presented evidence that he faces a risk of grave harm if he
is removed to Jamaica, more is required to prevail on this
motion. He must establish a strong showing that he was likely
to succeed in proving that the Board erred when it concluded
he was not entitled to file an untimely motion to reopen.
Because he has not done so, he is not entitled to relief on
this motion. We will, however, grant Blake's motions to
seal his records before this Court, and we will carry his
motions for judicial notice with the case.
United States deported Blake twice, in 2005 and 2008, after
he entered the country illegally. When Blake illegally
entered the United States for a third time in May 2009, the
Department of Homeland Security charged him as removable as
an alien who falsely represented himself as a United States
citizen, 8 U.S.C. § 1182(a)(6)(C)(ii)(I), who was not in
possession of a valid travel document at the time of entry,
id. § 1182(a)(7)(A)(i)(I), and who had
previously been ordered removed after being convicted of an
aggravated felony, id. § 1181(a)(9)(A)(i). In
June 2009, an immigration judge ordered Blake removed.
government delayed deporting Blake. In a separate criminal
proceeding, Blake pleaded guilty to drug-trafficking charges
and became a cooperating witness in the prosecution of
Christopher Coke, a gang leader in Jamaica. In exchange for
testifying against Coke, Blake received a sentencing
reduction. The government also deferred his removal. But in
January 2019, the Department placed him in the custody of
immigration officials to execute the 2009 removal order.
responded with a motion to reopen his immigration
proceedings. He alleged that his motion, although untimely,
was exempt from the time limitation based on a change in
country conditions in Jamaica and that he was entitled to
relief under the United Nations Convention Against Torture.
The immigration judge denied Blake's motion, and the
Board of Immigration Appeals affirmed. The Board found that
Blake had established only a change in his personal
circumstances, not a change in country conditions in Jamaica,
which was insufficient to exempt him from the deadline to
file a motion to reopen. The Board also found that Blake had
failed to prove a prima facie case of eligibility for
deferral of removal under the Convention because he did not
submit sufficient evidence that he would more likely than not
be tortured by, or with the acquiescence of, the Jamaican
petitioned this Court for review. He moved to stay his
removal pending disposition of his petition, to seal several
records, and for this Court to take judicial notice of new
records. Although the government did not oppose Blake's
motions to seal, it filed a response in opposition to his
motions for a stay and for judicial notice.
STANDARD OF REVIEW
determining whether to grant a stay of removal, we consider
"(1) whether the stay applicant has made a strong
showing that he is likely to succeed on the merits; (2)
whether the applicant will be irreparably injured absent a
stay; (3) whether issuance of the stay will substantially
injure the other parties interested in the proceeding; and
(4) where the public interest lies." Nken v.
Holder, 556 U.S. 418, 434 (2009) (citation and internal
quotation marks omitted). The failure to establish a strong
likelihood of success on the merits is fatal to a motion to
stay removal. See id. at 435 (stating that courts
should consider the second two factors only after "an
applicant satisfies the first two factors").
start, and end, with whether Blake has made a strong showing
that he is likely to succeed on the merits. To prevail, Blake
must meet the "heavy burden" that comes with a
motion to reopen the case. Zhang v. U.S. Att'y
Gen., 572 F.3d 1316, 1319 (11th Cir. 2009). After the
Board orders an alien removed, an alien must file a motion to
reopen "within 90 days of the date of entry of a final
administrative order." 8 U.S.C. §
1229a(c)(7)(C)(i). But this deadline does not apply if
"(1) an alien files a motion to reopen that seeks ...
relief under the Convention Against Torture; (2) the motion
is predicated on changed country conditions; and (3) the
changed conditions are material and could not have been
discovered at the time of the removal proceedings."
Jiang v. U.S. Att'y Gen., 568 F.3d 1252, 1256
(11th Cir. 2009) (citing 8 C.F.R. § 11003. 23(b)(4)(i)).
Here, the evidence of changed conditions must be material to
Blake's eligibility for relief under the Convention
Against Torture. To receive relief under the Convention,
Blake must "establish that it is more likely than not
that he ... would be tortured if removed to the proposed
country of removal," 8 C.F.R. § 208.16(c)(2),
"by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in
an official capacity," id. § 208.18(a)(1).
So to sum up these standards, Blake's must make a prima
facie case that it was more likely than not he would be
tortured by or with the consent or acquiescence of Jamaican
officials on returning to his home country due to changes in
country circumstances since his removal proceedings.
offers three arguments why the Board likely erred when it
concluded that he could not meet this burden. He first
asserts that the Board committed legal error by failing to
give reasoned consideration to his application. See
Indrawati v. U.S. Att'y Gen.,779 F.3d 1284, 1302
(11th Cir. 2015) ("Occasionally this court has granted
petitions for review, vacated agency decisions, and remanded
for further proceedings when the agency's decision was so
lacking in reasoned consideration and explanation that
meaningful review was impossible."). Next, he argues
that the Board's decision itself was erroneous. And
finally, he accuses the Board of ...