Gutierrez-Curi v. Atty Gen USA , 90 F. App'x 648 ( 2004 )

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
2-19-2004
Gutierrez-Curi v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-3314
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-3314
MARIA DOLORES GUTIERREZ-CURI,
Petitioner
v.
JOHN ASHCROFT, ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
___________
ON PETITION FOR REVIEW FROM THE BOARD OF IMMIGRATION APPEALS
(No. A70-798-306)
___________
Submitted Under Third Circuit LAR 34.1(a)
September 3, 2003
BEFORE: SLOVITER, NYGAARD, and ROTH, Circuit Judges.
(Filed: February 19, 2004)
___________
OPINION OF THE COURT
___________
NYGAARD, Circuit Judge.
I.
Appellant, Maria Gutierrez-Curi, is a citizen and native of Peru. On July
12, 1992, Gutierrez-Curi entered the United States as a non-immigrant visitor for
pleasure. On April 17, 1998, the Immigration and Naturalization Service (“INS”)
charged Gutierrez-Curi with removability under Section 237 of the Immigration and
Nationality Act. 8 U.S.C. § 1227(a)(1)(B). The INS alleged that Gutierrez-Curi had
remained in the United States for longer than permitted under her visa. Gutierrez-Curi
admitted the facts relevant to her removability and the Immigration Judge (“IJ”) found
that she was subject to removal. Gutierrez-Curi sought relief through an application for
asylum and withholding of removal.
In support of her application, Gutierrez-Curi presented both documentary
and testimonial evidence. After receiving this evidence, the IJ found that Gutierrez-Curi
did not qualify for asylum or withholding of removal. Gutierrez-Curi then filed an appeal
with the Board of Immigration Appeals (“BIA”). Utilizing the streamlining procedures of
8 C.F.R. § 3.1(a)(7), the BIA affirmed the decision of the IJ without opinion.1 The instant
Petition for Review followed.
1. Because the BIA affirmed the IJ’s decision without opinion, we review the
IJ’s opinion. Dia v. Ashcroft, 353 F.3d 228, 245 (3d Cir. 2003) (en banc).
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Gutierrez-Curi challenges three aspects of the BIA’s decision. First, she
asserts that substantial evidence does not support the IJ’s decision that she does not
qualify for asylum and withholding of removal. Second, she asserts that the BIA erred in
using the affirmance without opinion procedures authorized by 8 C.F.R. § 3.1(a)(7).
Finally, she claims the BIA erred by not considering her application under the United
Nations Convention Against Torture (“UNCAT”). We find no error in the BIA’s or IJ’s
decision and will deny the Petition for Review.
II.
The parties are familiar with the facts of this matter and, as such, we will
address only those facts that are particularly relevant to our analysis.
Gutierrez-Curi first asserts that the IJ’s decision is not supported by
substantial evidence and is contrary to the decision a reasonable adjudicator would be
compelled to reach. This Court, sitting en banc, recently summarized our standard of
review over an IJ’s decision regarding applications for asylum and withholding of
removal. Dia, 353 F.3d at 247-49. As explained in Dia, we review the IJ’s findings of
fact to determine if they are supported by substantial evidence. Id. at 249. Substantial
evidence supports an IJ’s factual determination when “a reasonable fact finder could
make such a determination based upon the administrative record.” Id.
Our review of the record discloses substantial evidence in support of the
IJ’s decision that Gutierrez-Curi did not qualify for asylum or withholding of removal.
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To qualify for asylum, an alien must establish that he or she has suffered past persecution
or has a well-founded and reasonable fear of future persecution. Abdille v. Ashcroft, 242
F.3d 477, 492 (3d Cir. 2001). Withholding of removal is a more stringent standard than
asylum, and an alien who does not qualify for asylum will not qualify for withholding of
removal. Janusiak v. INS, 947 F.2d 46, 47 (3d Cir. 1991). The IJ’s decision that
Gutierrez-Curi did not suffer past persecution or have a reasonable, well-founded fear of
future persecution is well supported in the record. The Department of State Country
Report for Peru indicates that the Shining Path, the group Gutierrez-Curi named as her
persecutors, is weakening as a terrorist group. Also, Gutierrez-Curi’s own testimony
supports the IJ’s determination that she was incorrect in her belief that the Shining Path
was targeting her. A review of the entire record convinces us that a reasonable fact finder
could come to the same conclusion as the IJ.
Gutierrez-Curi next challenges the BIA’s affirmance, without opinion, of
the IJ’s decision. This Court recently addressed the streamlining procedure utilized by the
BIA in this case and found it to be constitutional. Dia, 353 F.3d at 234-45. Gutierrez-
Curi argues that the use of the streamlining procedure in this case was inappropriate
because the IJ’s decision was incorrect. Based on the above analysis, we do not find that
the IJ’s decision was incorrect and, therefore, the BIA’s use of the affirmance without
opinion procedure was appropriate.
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Finally, Gutierrez-Curi argues that we should remand this matter to the BIA
so it can issue an opinion regarding her UNCAT claim. 8 C.F.R. § 208.18(b)(1). While
Gutierrez-Curi makes this claim on appeal, she failed to apply for relief under UNCAT
before the BIA, failed to request a remand from the BIA to raise UNCAT before the IJ,
and failed to raise the possible applicability of UNCAT in her brief before the BIA. The
UNCAT regulations make it clear that an “alien who is in exclusion, deportation, or
removal proceedings on or after March 22, 1999 may apply for withholding of removal
under” the UNCAT regulations. Id. Gutierrez-Curi’s removal proceedings were on
appeal to the BIA on March 22, 1999. As such, her removal order was not final and she
was still “in . . . removal proceedings on or after March 22, 1999.” See 8 U.S.C. §
1101(a)(47)(B) (indicating that an order of deportation is not final until either the BIA has
affirmed such order or the time period for seeking review by the BIA has expired). In
fact, Gutierrez-Curi’s brief to the BIA was not due, and she did not file it, until December
1999.
Despite the clear language of the UNCAT regulations, Gutierrez-Curi did
not apply for withholding of removal under UNCAT or even mention UNCAT in her
brief before the BIA. Therefore, the BIA did not have the opportunity to address the
UNCAT claims she now makes on appeal. The precedent of this Court is clear that we
will not review an alien’s claims if he or she did not make those claims to the BIA.
Alleyne v. INS, 879 F.2d 1177, 1182 (3d Cir. 1989). As a result, we will not remand this
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matter to the BIA to address claims that Gutierrez-Curi did not properly assert in the first
instance.
For the reasons set forth above, we will deny the Petition for Review.
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