Alberto Riz v. Atty Gen USA ( 2009 )

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
6-11-2009
Alberto Riz v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-3017
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-3017
___________
ALBERTO RIZ,
Petitioner
v.
MICHAEL B. MUKASEY, Attorney General of the United States,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A73-590-696)
Immigration Judge: Honorable Miriam K. Mills
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
June 11, 2009
Before: SLOVITER, STAPLETON and COWEN, Circuit Judges
(Opinion filed: June 11, 2009)
___________
OPINION
___________
PER CURIAM
Petitioner seeks review of the Board of Immigration Appeals’ (“BIA”) order
dismissing his appeal from the Immigration Judge’s (“IJ”) order of removal. For the
following reasons, we will deny the petition.
I.
Petitioner, Alberto Riz, is 29 years old and is a citizen of Guatemala. Riz entered
the United States unlawfully in or around 1996 and was placed in removal proceedings.
Riz applied for asylum and withholding of removal, but his applications were denied. Riz
apparently left the country thereafter. He returned to the United States in September
2000, and, in 2005, was again placed in removal proceedings. This time, Riz sought
relief under the Convention Against Torture (“CAT”).
In his application for relief under the CAT, Riz claimed that he feared returning to
Guatemala because former guerillas, criminals, or “bad police” might harm him or his
family. (A.R. 000133.) Riz further claimed that he feared “being imprisoned and
tortured by the police or government agents” because, according to Riz, they will believe
that he has access to “a lot of money from the United States.” (A.R. 000133.) Riz
explained that his fear is based on accounts from family members still living in
Guatemala, and on various country reports discussing human rights conditions there.
Later in his application, Riz added that, when he returned to Guatemala after his initial
application for asylum had been denied, the people who had killed his brother some time
in the past found him and threatened to kill him as well. (A.R. 000134.) According to
Riz, they thought he had a lot of money because he had come from the United States.
In support of his application, Riz submitted a 1999 report on Human Rights
Developments issued by Human Rights Watch, the U.S. Department of State Country
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Reports for the years 1996 and 2004, and the State Department’s 1997 Profile of Asylum
Claims and Country Conditions for Guatemala. Riz later supplemented his application
with several other reports, including Human Rights Watch’s 2006 report on conditions in
Guatemala.
At his removal hearing before Immigration Judge Miriam K. Mills, Riz’s attorney
opted to rest on the record, and did not introduce any testimony in support of Riz’s
application. After reviewing the record, IJ Mills denied the application on the ground that
Riz failed to establish that it is more likely than not that he would be tortured if forced to
return to Guatemala. See 8 C.F.R. § 1208.16(c)(2). By order entered June 10, 2008, the
BIA adopted and affirmed the IJ’s decision. This petition for review followed.
II.
We have jurisdiction to review final orders of removal pursuant to 8 U.S.C. §
1252(a)(1). See Abdulai v. Ashcroft, 239 F.3d 542, 548 (3d Cir. 2001). In this case, the
BIA adopted the IJ’s decision with some independent commentary, so we will review
both decisions together. See Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004). We
review the BIA’s and IJ’s decisions to deny CAT relief under the deferential substantial
evidence standard. Zubeda v. Ashcroft, 333 F.3d 463, 471 (3d Cir. 2003). Under this
standard, we will uphold the Board’s findings unless the evidence not only supports a
contrary conclusion, but compels it. See Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d
Cir. 2001).
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An applicant seeking relief under the CAT bears the burden of establishing,
through objective evidence, that “it is more likely than not” that he would be tortured if
returned to the proposed country of removal. Sevoian v. Ashcroft, 290 F.3d 166, 174-75
(3d Cir. 2002) (quoting 8 C.F.R. § 208.16(c)(2)). Torture is defined as the intentional
infliction of severe pain or suffering “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.
§ 208.18(a)(1). An alien may establish government acquiescence to torture by showing
that the government has awareness of, or is “willfully blind” to, a group’s activities.
Silva-Rengifo v. Att’y Gen., 473 F.3d 58, 65 (3d Cir. 2007).
Upon review of the record, we conclude that substantial evidence supports the
BIA’s finding that Riz failed to establish that it is more likely than not that he would be
tortured if returned to Guatemala. Although the evidence that Riz submitted in support of
his application indeed shows a pattern of human rights violations in Guatemala, it does
not demonstrate that Riz himself will be the target of torture, or that the government will
acquiesce in that hypothetical torture. For example, while the U.S. Department of State’s
2004 Country Report on Human Rights Practices indicates that there is a high level of
criminal activity and corruption in Guatemala, nothing therein suggests that Riz would be
singled out for such treatment. (A.R. 000163-173.) See Zubeda, 333 F.3d at 478 (stating
that reports of generalized brutality within a country do not, in the absence of additional
evidence, allow an alien to sustain his burden under the CAT.) Similarly, the Department
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of State’s 2005 Public Announcement merely warns foreign travelers to beware of armed
robberies and other violent crimes; it does not include any reports of native citizens being
subject to torture. (A.R. 000141-42.) Furthermore, contrary to Riz’s contention, none of
the evidence indicates that Guatemalans returning from the United States were
specifically targeted for mistreatment based on the perception that they were wealthy.
Accordingly, the record supports the conclusion that Riz did not meet his burden of
establishing that it is more likely than not that he will be tortured in Guatemala.
III.
For the foregoing reasons, we will deny the petition for review.
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