Paulino v. Attorney General of the United States ( 2012 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 12-2481
___________
JUAN PAULINO,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A043-328-948)
Immigration Judge: Jesus Clemente
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
September 20, 2012
Before: CHAGARES, VANASKIE AND BARRY, Circuit Judges
(Opinion filed: October 1, 2012)
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OPINION
___________
PER CURIAM
Juan Lorenzo Paulino petitions for review of an order of the Board of Immigration
Appeals (“BIA”) denying his motion to reopen and reconsider his removal proceedings.
For the reasons that follow, we will deny the petition for review.
Paulino is a native and citizen of the Dominican Republic who was admitted to the
United States in 1992 as a lawful permanent resident. In 2002, he was convicted of a
state drug offense. While serving his sentence, he absconded from a work release
program in 2004. In 2009, he was convicted in the United States District Court for the
District of New Jersey of conspiracy to distribute five or more kilograms of cocaine. He
was sentenced to eighty-four months in prison. The Department of Homeland Security
charged him with removability for an aggravated felony conviction (8 U.S.C.
§ 1227(a)(2)(A)(iii)), a controlled substance offense (8 U.S.C. § 1227(a)(2)(B)(i)), and
two crimes involving moral turpitude (8 U.S.C. § 1227(a)(2)(A)(ii)). Paulino conceded
his removability but sought a deferral of removal under the United Nations Convention
Against Torture (“CAT”). He claimed that he feared returning to the Dominican
Republic because of threats of being killed by his drug supplier, Estalin Perez. Paulino
asserted that Estalin Perez seeks retribution for the lost cocaine as well as for Paulino’s
having provided the prosecution with information about the federal drug conspiracy.
Paulino further stated that Estalin Perez is a police officer in the Dominican Republic.
In 2010, after a hearing, the Immigration Judge (“IJ”) denied relief and ordered
Paulino’s removal. On March 21, 2011, the BIA affirmed the IJ’s decision, finding that
the evidence was insufficient to show that Estalin Perez is a member of the police force
or that the government of the Dominican Republic would approve of, or be willfully
blind to, the torture of its citizens by a private individual. On September 23, 2011, we
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denied Paulino’s petition for review in C.A. No. 11-1877, finding that the record did not
compel the conclusion that Paulino was entitled to deferral of removal.
On December 27, 2011, Paulino filed with the BIA a motion to reopen and remand
based on changed circumstance, namely, that his fourteen-year-old cousin in the
Dominican Republic was abducted and beaten by Estalin Perez and his thugs. Paulino
stated that his cousin lost three teeth and suffered several cuts that required stitches on his
head. He further stated that the perpetrators told his cousin that the beating was intended
as a message of what Paulino would face upon his return to the Dominican Republic. On
January 24, 2012, the BIA denied the motion. The BIA noted that Paulino did not
support his motion with any corroborating evidence. The BIA also noted that, while the
attack and threats might constitute changed circumstances, Paulino had not shown that
they were material to his CAT claim because they constituted private conduct outside of
the scope of CAT protection. Thus, the BIA concluded that Paulino had not shown that
he is prima facie eligible for CAT relief, and that the motion was not exempt from the
time limitation for a motion to reopen.
On February 13, 2012, Paulino filed another motion with the BIA, seeking both
reconsideration of the BIA’s January 24, 2012 decision and reopening of the proceedings
based on new evidence of the attack on his cousin. In support, Paulino submitted
evidence including a police report and a sworn affidavit by his aunt regarding the attack
on her son. On April 24, 2012 the BIA denied the motion. The BIA found that as a
motion to reopen, it was untimely and number-barred. Further, the BIA found that the
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motion failed to identify any error of fact or law in its prior decision, and that the new
evidence did not change the BIA’s prior finding that Paulino had not shown prima facie
eligibility for relief.
This petition for review followed. We have jurisdiction pursuant to 8 U.S.C.
§ 1252 to review the BIA’s denial of Paulino’s motion to reconsider and motion to
reopen, and we apply the abuse of discretion standard to our review. See Borges v.
Gonzales, 402 F.3d 398, 404 (3d Cir. 2005). Under that standard, the BIA’s decision
may be reversed only if it is “arbitrary, irrational, or contrary to law.” Id. (citing Guo v.
Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004)).
We first consider Paulino’s motion to reconsider. A motion to reconsider must
specify the errors of fact or law at issue in the prior BIA decision. 8 C.F.R.
§ 1003.2(b)(1). We agree with the BIA’s finding that Paulino’s motion itself does not
specify any errors of fact or law. However, the record indicates that Paulino requested
consideration of the new evidence and a memorandum that he had attempted to file in
connection with his previous motion to reopen. Paulino argued in that document, and
now argues in his brief, that the BIA applied the wrong legal standard to his CAT claim.
He cites Silva-Rengifo v. Attorney General, 473 F.3d 58 (3d Cir. 2007), arguing that the
definition of “acquiescence” that the BIA had adopted in Matter of S-V-, 22 I. & N. Dec.
1306 (BIA 2000), was incorrect. In Silva-Rengifo, 473 F.3d at 65, we rejected the BIA’s
conclusion that the acquiescence that must be shown for a CAT claim requires actual
knowledge of torturous activity, as required in Matter of S-V-. Rather, we held that “an
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alien can satisfy the burden established for CAT relief by producing sufficient evidence
that the government in question is willfully blind to such activities.” Id.Paulino’s argument is without merit, because the BIA did not apply the “actual
knowledge and acquiescence” standard of Matter of S-V in his case. In its March 21,
2011 decision, the BIA cited and applied the correct standard of showing that it is more
likely than not that the alien will be tortured at the instigation of, or with the consent or
acquiescence of, a public official of the country of removal. See 8 C.F.R.
§§ 1208.16(c)(2), 1208.18(a)(1). Moreover, there is no indication that the BIA applied an
incorrect standard in evaluating the CAT claim in its subsequent decisions in Paulino’s
case. We conclude that the BIA did not abuse its discretion in denying the motion to
reconsider.
As for Paulino’s motion to reopen, there appears to be no dispute with the BIA’s
finding that it was both untimely and number-barred. See 8 U.S.C.
§§ 1229a(c)(7)(A) & (C)(i); 8 C.F.R. § 1003.2(c)(2). However, the restrictions do not
apply to motions that rely on evidence of “changed circumstances arising in the country
of nationality . . . if such evidence is material and was not available and would not have
been discovered or presented at the previous hearing.” 8 U.S.C. §§ 1229a(c)(7)(C)(ii);
8 C.F.R. § 1003.2(c)(3)(ii). A motion to reopen must establish prima facie eligibility for
relief, that is, a reasonable likelihood of establishing entitlement to relief, upon review of
evidence accompanying the motion as well as record evidence. See Guo, 386 F.3d at 563
and n.7 (citing Sevoian v. Ashcroft, 290 F.3d 166, 173 n.5 (3d Cir. 2002)).
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Paulino argues that he amply supported his argument of changed circumstances by
providing additional evidence of the attack on his cousin. However, as noted by the BIA,
this additional evidence does not alter the earlier finding that Paulino has not
demonstrated that he is prima facie eligible for CAT relief. To qualify for CAT relief, the
torture in question 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.” 8 C.F.R.
§ 1208.18(a)(1). As we stated in our September 23, 2011 decision in Paulino’s previous
petition for review, the undisputed facts in the record do not establish that Estalin Perez is
a member of the police force, nor do they establish that any public official in the
Dominican Republic would consent or acquiesce to the mistreatment of Paulino. See
Paulino v. Att’y Gen., C.A. No. 11-1877, slip op. at 5-6 (3d Cir. Sept. 23, 2011). Thus,
the additional evidence that Paulino submitted concerning the attack on his cousin is
unavailing to warrant reopening.
We add that Paulino argues that he is entitled to release from custody in light of
his assistance to the prosecution in his criminal case and the danger he faces as a result of
his cooperation. In support, he quotes section 236(c)(2) of the Immigration and
Nationality Act, 8 U.S.C. § 1226(c)(2), which allows for release of a criminal alien “only
if the Attorney General decides . . . that release of the alien from custody is necessary to
provide protection to a witness, a potential witness, [or] a person cooperating with an
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investigation into major criminal activity . . . .” 1 We previously determined that this
argument is “plainly without merit,” because section 236(c) has no connection to
Paulino’s eligibility for CAT relief. Paulino v. Att’y Gen., C.A. No. 11-1877, slip op. at
4. We need not revisit that determination here.
We discern no abuse of discretion in the BIA’s denial of Paulino’s motion to
reconsider and reopen. Accordingly, we will deny the petition for review.
1
Paulino cites to INA § 236(c)(1), relating to custody of criminal aliens, and “INA
§ 261(c)(2)” in quoting the statutory language above. We interpret the reference to
section 261 as an inadvertent error.
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