Due Process in Removal Proceedings Requires Substantial Prejudice; “Criminal Deportees” Not a Particular Social Group; New Country-Conditions Evidence Must Be Raised by Motion to Reopen

Introduction

In Steeve Djorkaeff Moise v. Attorney General United States of America (3d Cir. Feb. 20, 2026) (not precedential), the Third Circuit denied a pro se petition for review challenging a final order of removal issued by the Board of Immigration Appeals (“BIA”). The petitioner, Steeve Moise, a citizen of Haiti, was paroled into the United States in 2017 but did not adjust to lawful permanent resident status. In 2023, the Department of Homeland Security charged him as inadmissible for lacking valid entry documents under 8 U.S.C. § 1182(a)(7)(A)(i)(I).

Moise sought asylum, withholding of removal, and Convention Against Torture (“CAT”) protection, alleging fear of harm in Haiti based on (i) his political discussions while in Massachusetts, (ii) his mother’s alleged political activity in Haiti, and (iii) his status as a deportee with a criminal history (including a Florida battery conviction and Massachusetts charges).

The case presented six recurring immigration-law issues: (1) due process challenges grounded in transcript defects, (2) due process claims based on an inability to present an expert witness, (3) whether “deportees with a criminal history” can be a cognizable “particular social group,” (4) how to present post-record country-conditions deterioration, (5) exhaustion/waiver of an asylum timeliness challenge, and (6) what evidentiary showing is required to establish CAT likelihood.

Summary of the Opinion

The Third Circuit denied relief across the board:

  • Transcript defects: Even if a short, non-merits hearing transcript contained serious transcription errors, Moise did not show those defects prejudiced the BIA’s ability to review the merits hearing testimony or decide the appeal; therefore, no due process violation.
  • Expert witness: Any failure to hear expert testimony did not warrant relief because Moise did not show prejudice; the proffered testimony concerned general country conditions and deportee dangers and would not have altered the dispositive grounds of denial.
  • Particular social group: The court rejected the argument that “deportees with a criminal history” is a qualifying group, relying on circuit precedent that “criminal deportees” are not recognized as a social group.
  • Worsened conditions/remand: A request to add new evidence of deteriorating conditions must be made first via a motion to reopen at the BIA, not through a petition for review, because judicial review is confined to the administrative record.
  • Asylum timeliness: The court enforced exhaustion because Moise did not raise timeliness to the BIA and the Government invoked the defense; the asylum time-bar issue was therefore not before the court.
  • CAT: Moise did not point to record evidence showing it was “more likely than not” he would be tortured in Haiti.

Analysis

Precedents Cited

  • Thayalan v. Att'y Gen., 997 F.3d 132 (3d Cir. 2021) and Nasrallah v. Barr, 590 U.S. 573 (2020): The court invoked these decisions for the substantial-evidence standard governing review of agency factual findings—findings stand unless “any reasonable adjudicator would be compelled to conclude to the contrary.” This framing was central to rejecting Moise’s CAT arguments that were unsupported by specific, individualized proof.
  • Freza v. Att'y Gen., 49 F.4th 293 (3d Cir. 2022): Cited for de novo review of constitutional claims and questions of law, establishing the court’s authority to assess due process and exhaustion issues independently while still demanding a showing of prejudice for procedural claims.
  • Kars 4 Kids Inc. v. Am. Can!, 98 F.4th 436 (3d Cir. 2024): Used to exclude new arguments raised only in a reply brief, reinforcing the appellate rule that issues must be properly presented in opening briefing to be considered.
  • Delgado-Sobalvarro v. Att'y Gen., 625 F.3d 782 (3d Cir. 2010): The doctrinal anchor for Moise’s due process challenges. The court applied its rule that to prove a due process violation in removal proceedings, a petitioner must show substantial prejudice from the procedural defect. This precedent drove rejection of both (i) the transcript-indiscernibility claim and (ii) the claim that the IJ’s handling of expert testimony denied a fair hearing.
  • Toussaint v. Att'y Gen., 455 F.3d 409 (3d Cir. 2006): Dispositive on the “particular social group” point. The panel treated Toussaint as foreclosing recognition of “criminal deportees” as a social group, defeating Moise’s withholding theory premised on deportee status plus criminal history.
  • Joseph v. Att'y Gen., 465 F.3d 123 (3d Cir. 2006): The court referenced the Third Circuit’s “liberal exhaustion policy” (i.e., a petitioner need not do much to alert the BIA), but explained Moise still failed because he did not mention asylum timeliness in his notice of appeal or BIA brief.
  • Aguilar v. Att'y Gen., 107 F.4th 164 (3d Cir. 2024): Used to explain that 8 U.S.C. § 1252(d)(1) exhaustion is a non-jurisdictional claim-processing rule, but one the court must enforce when the Government properly raises it—exactly what occurred here.
  • Hernandez Garmendia v. Att'y Gen., 28 F.4th 476 (3d Cir. 2022): Cited for the CAT evidentiary requirement that torture risk must rest on “specific evidence” the applicant is “more likely than not” to be singled out, reinforcing the individualized-risk focus that general evidence of violence or instability cannot satisfy by itself.

Legal Reasoning

  1. Due process and transcript defects: prejudice is essential.
    The court assumed the premise that the transcript of a short, non-merits hearing contained significant errors, but treated that as insufficient absent a showing that it impaired meaningful agency review of the merits determination. Under Delgado-Sobalvarro v. Att'y Gen., a procedural flaw becomes a due process violation only if it causes “substantial prejudice.” Because the defective transcript did not concern the merits hearing testimony that drove the decision, Moise could not connect the flaw to an adverse outcome.
  2. Excluded (or functionally omitted) expert testimony: no relief without a showing it could have changed the result.
    Even accepting that technical difficulties and timing prevented counsel from presenting the expert, the court focused on remedy: Moise had to show prejudice. The proposed testimony—general conditions, risks to deportees, and the human-rights situation—would not have overcome the decisive findings: asylum was denied as untimely; the “deportees with a criminal history” group was rejected as not cognizable; and Moise lacked evidence he would be singled out for persecution or torture.
  3. Particular social group: “criminal deportees” is foreclosed.
    The court treated Moise’s third argument as directly answered by Toussaint v. Att'y Gen., which agreed with other circuits that “criminal deportees are not recognized as a social group.” This is an important doctrinal move: rather than conducting an extended social-group analysis, the panel applied binding circuit law that categorically defeats the claim as presented.
  4. Changed conditions belong in a motion to reopen, not a petition for review.
    The court relied on two constraints: (i) 8 C.F.R. § 1003.2(c), which channels new-evidence requests to the BIA through a motion to reopen, and (ii) 8 U.S.C. § 1252(b)(4)(A), which limits the court of appeals to the existing administrative record. Thus, even if Haiti’s situation deteriorated after the record closed, the correct procedural vehicle is reopening before the agency.
  5. Asylum timeliness and exhaustion: liberal exhaustion still requires actually raising the issue.
    The IJ found asylum time-barred under 8 U.S.C. § 1158(a)(2)(B), (D). The BIA deemed any timeliness challenge waived, and the Third Circuit enforced exhaustion under 8 U.S.C. § 1252(d)(1), emphasizing (via Aguilar v. Att'y Gen.) that once the Government invokes the defense, the court must apply it. The court also highlighted that even the Third Circuit’s “liberal exhaustion policy” (from Joseph v. Att'y Gen.) could not rescue a total failure to mention timeliness to the BIA.
  6. CAT: generalized danger does not satisfy “more likely than not” without individualized proof.
    By invoking Hernandez Garmendia v. Att'y Gen., the court underscored that CAT protection requires concrete, applicant-specific evidence of a torture likelihood. Moise’s briefing asserted broad instability but did not identify record evidence proving that he personally was more likely than not to be tortured.

Impact

  • Procedural due process claims will continue to fail without a prejudice showing. The opinion reinforces that transcript problems and hearing-management issues are not self-executing due process violations. Petitioners must tie the defect to an inability to present material evidence or to meaningful review—and show a realistic prospect of a different outcome.
  • “Criminal deportee” social-group claims remain exceptionally difficult in the Third Circuit. By relying on Toussaint v. Att'y Gen., the court signals that rebranding the same concept (“deportees with a criminal history”) will not avoid the categorical problem.
  • Record discipline and procedural channeling matter. The decision is a reminder that courts of appeals will not entertain new evidence of worsening country conditions in the first instance. Practitioners must use motions to reopen and compile supporting evidence there.
  • Issue preservation at the BIA is outcome-determinative. Even in circuits with liberal exhaustion standards, complete omission of an issue (here, asylum timeliness) can foreclose judicial review once the Government raises exhaustion.

Complex Concepts Simplified

“Substantial prejudice” (in immigration due process)
A petitioner must show not only that a procedural mistake occurred (e.g., a bad transcript or an excluded witness), but that the mistake likely mattered—i.e., it had a meaningful chance of changing the outcome.
“Particular social group”
A category of people who share a defining characteristic that can qualify as a protected ground for withholding/asylum. In this case, the court relied on precedent holding that “criminal deportees” are not recognized as such a group.
“Exhaustion” under 8 U.S.C. § 1252(d)(1)
Before asking a federal court to review an immigration issue, the noncitizen must first raise it to the BIA. If the Government points out the failure, the court generally will not consider the unraised issue.
“Motion to reopen” (8 C.F.R. § 1003.2(c))
The procedural mechanism to present new, previously unavailable evidence (such as changed country conditions) to the BIA after a final decision. Courts of appeals typically cannot consider such extra-record evidence on petition for review.
CAT “more likely than not” standard
The applicant must prove a greater-than-50% likelihood of torture if removed, supported by specific evidence about the applicant’s personal risk, not only general violence in the country.

Conclusion

The Third Circuit’s decision underscores three practical rules of removal litigation: (1) procedural errors (including transcript problems and witness-presentation issues) require a concrete showing of substantial prejudice; (2) in the Third Circuit, claims framed around “criminal deportees” as a “particular social group” are defeated by existing precedent; and (3) deteriorating country conditions and other new evidence must be pursued through a motion to reopen before the BIA, while issue preservation and exhaustion remain essential to judicial review.