Darwin Robles v. U.S. Attorney General ( 2012 )


Menu:
  •                     Case: 11-15566            Date Filed: 07/17/2012   Page: 1 of 6
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 11-15566
    Non-Argument Calendar
    ________________________
    Agency No. A097-983-975
    DARWIN ROBLES,
    llllllllllllllllllllllllllllllllllllllll                   Petitioner,
    versus
    U.S. ATTORNEY GENERAL,
    llllllllllllllllllllllllllllllllllllllll                                              Respondent.
    ________________________
    Petition for Review of a Decision of the
    Board of Immigration Appeals
    ________________________
    (July 17, 2012)
    Before CARNES, BARKETT and WILSON, Circuit Judges.
    PER CURIAM:
    Darwin Robles, a native and citizen of Ecuador, appeals the Board of
    Immigration Appeals=s (“BIA”) order denying his motion to reopen proceedings so
    Case: 11-15566        Date Filed: 07/17/2012        Page: 2 of 6
    that he could apply for withholding of removal under the Immigration and
    Nationality Act (“INA”) § 241(b)(3), 
    8 U.S.C. § 1231
    (b)(3), and relief under the
    United Nations Convention Against Torture and Other Cruel, Inhuman or
    Degrading Treatment or Punishment (“CAT”), 
    8 C.F.R. § 208.16
    (c).1
    In his motion to reopen, Robles claimed that he fears persecution and torture
    on account of his homosexuality if he is removed to Ecuador. On appeal, he
    argues that the BIA erred in finding that he failed to establish a prima facie case of
    eligibility for withholding of removal or CAT relief in his motion to reopen, and
    that the BIA abused its discretion in denying the motion. Specifically, he asserts
    that the evidence he submitted in support of his motion to reopen “confirms his
    fear of persecution.” Further, he contends that although the Ecuadorian
    Constitution made discrimination based on sexual orientation illegal in 2008, the
    evidence he presented in his motion to reopen “reflects government acquiescence”
    to alleged instances of torture such that CAT relief is warranted. 2
    1
    Although we asked the parties to address whether 
    8 U.S.C. § 1252
    (a)(2)(B) limits our
    jurisdiction over this petition, we agree with the parties that § 1252(a)(2)(B), which limits to some
    extent our review of certain discretionary determinations of the BIA, is inapplicable to Robles’s
    petition. Robles seeks to reopen his removal proceedings in order to apply for withholding of
    removal and CAT relief, both forms of relief which are non-discretionary.
    Robles was originally placed into removal proceedings when his conditional status as a
    lawful permanent resident was terminated. He subsequently was ordered removed after the
    Immigration Judge denied his requests for a good-faith marriage waiver and voluntary departure.
    None of these decisions are at issue in this petition.
    2
    Robles also argues that the BIA erred when it “categorically found” that he had not
    2
    Case: 11-15566        Date Filed: 07/17/2012       Page: 3 of 6
    We review the denial of a motion to reopen removal proceedings for an
    abuse of discretion. Zhang v. U.S. Att’y Gen., 
    572 F.3d 1316
    , 1319 (11th Cir.
    2009). When appropriate, judicial review will be “limited to determining whether
    the BIA exercised its discretion in an arbitrary or capricious manner.             The moving
    party bears a heavy burden, as motions to reopen are disfavored, especially in
    removal proceedings.” 
    Id.
     (citations omitted).
    A motion to reopen proceedings before the BIA “shall state the new facts
    that will be proven at a hearing to be held if the motion is granted and shall be
    supported by affidavits or other evidentiary material.” 
    8 C.F.R. § 1003.2
    (c)(1);
    INA § 240(c)(7)(B), 8 U.S.C. § 1229a(c)(7)(B). Further, “[a] motion to reopen
    proceedings shall not be granted unless it appears to the Board that evidence
    sought to be offered is material and was not available and could not have been
    discovered or presented at the former hearing . . . .” 
    8 C.F.R. § 1003.2
    (c)(1). To
    make such a showing, the movant “bears a heavy burden, and must present
    evidence of such a nature that the BIA is satisfied that if proceedings before the IJ
    were reopened, with all attendant delays, the new evidence offered would likely
    “moved to reopen proceedings to apply for asylum,” and he further asserts that he is eligible for
    asylum. Because he failed to raise the issue of asylum before the BIA, any claim in that respect
    is unexhausted, and we lack jurisdiction to consider it. See Amaya-Artunduaga v. U.S. Att’y
    Gen., 
    463 F.3d 1247
    , 1250 (11th Cir. 2006) (holding that we lack jurisdiction to consider a claim
    not raised before the BIA, even when the BIA sua sponte considers the claim). Moreover, to
    the extent he is arguing that the BIA procedurally failed to address one of the claims he included
    in his motion to reopen, that is refuted by the record for the same reason.
    3
    Case: 11-15566     Date Filed: 07/17/2012    Page: 4 of 6
    change the result in the case.” Ali v. U.S. Att’y Gen., 
    443 F.3d 804
    , 813 (11th Cir.
    2006) (quotations and alterations omitted). One reason the BIA may deny a
    motion to reopen is the alien’s failure to establish a prima facie case of eligibility
    for withholding of removal and CAT relief. See Al Najjar v. Ashcroft, 
    257 F.3d 1262
    , 1302 (11th Cir. 2001).
    To obtain withholding of removal, an applicant must establish that upon
    removal to his country, his “life or freedom would be threatened in that country
    because of [his] race, religion, nationality, membership in a particular social group,
    or political opinion.” INA § 241(b)(3)(A), 
    8 U.S.C. § 1231
    (b)(3)(A). The
    applicant “bears the burden of demonstrating that it is more likely than not [he] will
    be persecuted or tortured upon being returned to [his] country” on account of one of
    those protected grounds. Tan v. U.S. Att’y Gen., 
    446 F.3d 1369
    , 1375 (11th Cir.
    2006) (quotations omitted). An applicant can meet this showing either by
    demonstrating that he suffered past persecution, which gives rise to a rebuttable
    presumption of a well-founded fear of future persecution. 
    Id.
     Even if an
    applicant has not suffered past persecution, he can establish eligibility for
    withholding of removal by showing “that it is more likely than not that [he] would
    be persecuted on account of race, religion, nationality, membership in a particular
    social group, or political opinion upon removal to that country.” 
    Id.
     (citing 8
    4
    Case: 11-15566      Date Filed: 07/17/2012   Page: 5 of 
    6 C.F.R. § 208.16
    (b)(2)). The applicant’s well-founded fear must be both
    subjectively genuine and objectively reasonable. See Al Najjar, 257 F.3d at 1289.
    To establish a CAT claim, the alien must establish that he “more likely than
    not . . . would be tortured if removed to the proposed country of removal.” Al
    Najjar, 257 F.3d at 1303 (quotation omitted). The torture must be “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.” Id. A government official acquiesces in
    torture where the official is aware of the torture before it occurs “and thereafter
    breach[es] his or her legal responsibility to intervene to prevent such activity.”
    Reyes-Sanchez v. U.S. Att’y Gen., 
    369 F.3d 1239
    , 1242 (11th Cir. 2004).
    Upon review of the record and consideration of the parties’ briefs, we cannot
    say that the BIA abused its discretion in denying Robles’s request to reopen his
    removal proceedings to allow him to apply for withholding of removal and CAT
    relief. The BIA concluded that Robles failed to establish a prima facie case of
    eligibility for withholding of removal or CAT relief in his motion to reopen. See Al
    Najjar, 257 F.3d at 1302. The evidence showed that Ecuador’s Constitution made
    “discrimination based on sexual orientation illegal,” and, in 2008, it legalized civil
    unions for same-sex couples. Other evidence also showed that organizations in
    Ecuador actively worked to fight discrimination against homosexuals. Robles
    5
    Case: 11-15566     Date Filed: 07/17/2012   Page: 6 of 6
    points to additional evidence he submitted, including news articles describing
    attacks on gay rights activists, sexual harassment by certain sects of the Catholic
    Church in Equador, and “illegal clinics” which sometimes used violent methods to
    try to convert homosexuals, to establish that he will be persecuted should he return
    to Equador. Although some of the incidents described could arguably constitute
    persecution, Robles has not presented any evidence to support a finding that he will
    be singled out for such treatment on account of his homosexuality nor that the
    incidents described show a pattern or practice of treatment towards homosexuals in
    Equador. See 
    8 C.F.R. § 208.16
    (b)(2).
    Thus, we cannot say that the BIA abused its discretion in concluding that
    Robles did not meet his burden of demonstrating that “it is more likely than not” that
    he will be persecuted upon being returned to Ecuador. Tan, 
    446 F.3d at 1375
    .
    Regarding his request for CAT relief, Robles similarly failed to establish that he
    would “more likely than not” be tortured in Ecuador. Al Najjar, 257 F.3d at 1303.
    PETITION DENIED.
    6