id. § 1208.18(a)(1). Determin ing whether a petitioner faces a likelihood of torture involves a two-part inquiry: “(1) what is likely to happen to the petitioner if removed; and (2) does what is likely to happen amount to the legal definition of torture?” Kaplun v. Att’y Gen., 602 F.3d 260, 271 (3d Cir. 2010); see also Green v. Att’y Gen., 694 F.3d 503, 508 (3d Cir. 2012) (characterizing the first prong as addressing the “likelihood of harm” to the petitioner). The first prong is factual, and the second is legal. Kaplun, 602 F.3d at 271. Jasmin argues that the BIA erred by affirming the IJ’s opinion based on the first prong but conducting no analysis of the second prong. While we have jurisdiction to consider this argument, we have previously rejected it. See Green, 694 F.3d at 508 (<HOLDING>). Because the BIA agreed with the IJ that
holding the burden is on the defendant to demonstrate the error satisfies each prong of the plain error test holding that a petitioners inability to demonstrate either prong of the wainwright test results in dismissal of the habeas petition before the merits of the claims can be reached holding that the ij and bia did not err in addressing only one prong of the kaplun test because the petitioners failure to meet either prong is dispositive recognizing the difficulty in establishing the fourth prong in cases involving nonconstitutional booker error but finding that defendant had satisfied the fourth prong holding that petitioner who did not raise the methamphetaminetype issue at sentencing or on direct appeal was barred from raising that issue for the first time in  2255 motion and that petitioner did not satisfy either the performance prong or prejudice prong of ineffective assistance of counsel standard