Arce-Garibay v. Atty Gen USA , 79 F. App'x 516 ( 2003 )

Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
10-29-2003
Arce-Garibay v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-3945
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 02-3945
ANDRES ARCE-GARIBAY,
Petitioner
v.
JOHN ASHCROFT, Attorney General United States;
ANDREA J. QUARANTILLO, New Jersey District Director, Immigration and
Naturalization Service; IMMIGRATION & NATURALIZATION SERVICE,
Respondents
On Petition for Review of an Order of the
Board of Immigration Appeals
(No. A73 056 090)
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 17, 2003
BEFORE: SLOVITER, ROTH and STAPLETON, Circuit Judges
(Opinion Filed October 29, 2003 )
OPINION OF THE COURT
STAPLETON, Circuit Judge:
Andres Arce-Garibay, a native and citizen of Peru, seeks review of an order
of the Board of Immigration Appeals (“BIA”) affirming an Immigration Judge’s (“IJ”)
denial of his application for asylum and withholding of deportation. Because Arce-
Garibay was placed in deportation proceedings prior to April 1, 1997, and his final order
of deportation was entered by the BIA after October 31, 1996, we have jurisdiction under
8 U.S.C. Section 1105a (1994), as amended by the transitional rules for judicial review in
Section 309(c)(4) of the Illegal Immigration Reform and Immigrant Responsibility Act of
1996, Pub.L. No. 104- 208, 110 Stat. 3009-306, 3009-625 (Sept. 30, 1996) (“IIRIRA”);
see also Ahmed v. Ashcroft, 341 F.3d 214, 215 (3d Cir. 2003). We will deny the petition
for review.
I.
Because we write exclusively for the benefit of the parties, we will recite
only those facts relevant to the issues before us. Arce-Garibay entered the United States
without inspection in 1992 and applied for asylum the following year. When the federal
government initiated deportation proceedings against him in 1996, he conceded
deportability but sought relief under his asylum claim. He also filed a supplemental
application.
In 1998, the IJ held a one-day hearing at which Arce-Garibay was the only
witness. He testified that he was born and raised in a rural region of Peru that in later
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years became closely linked with the Shining Path terrorist organization. Arce-Garibay
claimed the Shining Path harassed many people in his region to join their cause, but that
he refused and in 1978 left for the city of Lima to obtain a secondary education. He
subsequently entered a military school in Lima that was affiliated with the Peruvian
military. Arce-Garibay testified that during the last year of military school, the Shining
Path ambushed a bus in which he was traveling. He claimed the terrorists shot him when
they discovered he was associated with the military, but that he was able to escape by
diving into nearby bushes.
Following his graduation from military school, Arce-Garibay joined the
Peruvian air force as a third-grade officer. He was later promoted to second-grade officer
and placed in charge of a company of ninety soldiers. He testified that he was responsible
for ensuring the maintenance and repairs of the aircraft at his base, a role which required
extra security clearance.
Arce-Garibay testified before the IJ that beginning in 1990 the military
began to suspect that he was somehow linked to the Shining Path because of his rural
background. He claimed the military interrogated him and tried to force a confession out
of him, but that he refused. He allegedly resigned from the military and fled to the United
States, but testified that he later learned the military had refused to accept his resignation
and had commenced a court martial proceeding against him.
II.
3
The IJ denied Arce-Garibay’s petition. The IJ discredited the alleged bus
attack because it did not appear in Arce-Garibay’s original or supplemental asylum
applications.1 The IJ further explained that he found implausible Arce-Garibay’s
explanation for this omission, which was that he was afraid to reveal too much about
himself in his asylum application. The IJ also noted that, even if the story were true, there
was no reason to believe the Shining Path was still pursuing Arce-Garibay or would
recognize him all these years later. As for the alleged persecution by the Peruvian
military, the IJ explained that he had “no way of knowing, on the basis of the evidence
before [him], whether that court martial is justified or not.” The IJ also noted that it
seemed unlikely that the Peruvian military would falsely accuse Arce-Garibay of being
associated with the Shining Path, considering the time and effort the military had
expended on his education and the level of responsibility assigned to him. Nor was there
any corroboration for the claim that the military was singling out soldiers who emanated
from a particular region of the country. Accordingly, the IJ found that Arce-Garibay had
not carried his burden of proving past persecution and a well-founded fear of future
persecution. The IJ did, however, grant Arce-Garibay’s request for voluntary departure.
The BIA affirmed the IJ’s decision. It observed that the bus attack “has not
been shown to be associated with his political opinion, but it was fortuitous, occasioned
by the guerrillas’ discovery of his military ID.” The BIA also remarked that Arce-
1
Although Arce-Garibay’s supplemental asylum application mentioned an “attempt on
his life,” it did not provide any details of this alleged attempt.
4
Garibay had not established that the court martial was “occasioned by his ethnic
background and the documents submitted only accuse him of ‘errors,’ not treason or
relations with the Shining Path.”
III.
Under the governing law, we must ascertain whether the BIA's factual
determinations are supported by substantial evidence. Senathirajah v. INS, 157 F.3d 210,
216 (3d Cir. 1998). We may decline to uphold the BIA’s findings only if the evidence
compels a contrary conclusion. INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992). We
defer to the BIA’s interpretation of the Immigration and Nationality Act (“INA”) unless
the interpretation is “‘arbitrary, capricious, or manifestly contrary to the statute.’” Katsis
v. INS, 997 F.2d 1067, 1070 (3d Cir. 1993) (quoting Chevron U.S.A. Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837, 844 (1984)).
Section 208(b) of the INA, 8 U.S.C. § 1158(b), provides that the Attorney
General has discretion to grant asylum to refugees. The INA defines a refugee as a
person who is unable or unwilling to return to his country “because of persecution or a
well-founded fear of persecution on account of race, religion, nationality, membership in
a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). The asylum
applicant bears the burden of establishing that he falls within this definition. 8 C.F.R. §
208.13(a) (2003). Establishing eligibility for withholding of deportation requires a
showing of a “clear probability of persecution,” a higher standard than that for asylum.
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INS v. Stevic, 467 U.S. 407, 430 (1984); Fatin v. INS, 12 F.3d 1233, 1238 (3d Cir. 1993).
If an immigration judge finds that a witness’s testimony lacks credibility,
we have stated that the judge must “offer a specific, cogent reason for [his or her]
disbelief.” Senathirajah, 157 F.3d at 216 (internal quotation marks and citation omitted).
Accordingly, we review the proffered “reasons to determine whether they are valid
grounds upon which to base a finding that the applicant is not credible.” Id. (internal
quotation marks and citation omitted).
Arce-Garibay contends that the IJ erred as a matter of law when he
determined that Arce-Garibay failed to establish that he suffered past persecution or a
well-founded fear of future persecution. In support of that contention, Arce-Garibay
summarizes his testimony before the IJ and argues that that evidence supports his asylum
claim. Although that approach would be sound if we were conducting a plenary review,
we review the record solely to determine if there is substantial evidence to support the
BIA’s decision, Senathirajah, 157 F.3d at 216, and we may reverse the findings below
only if the evidence compels otherwise. Elias-Zacarias, 502 U.S. at 481 n.3. Having
conducted a close review of the administrative record, we are satisfied that there is
substantial evidence to support the BIA’s decision.
Arce-Garibay also argues that, if his testimony were deemed credible, he
would be eligible for asylum because the Peruvian military allegedly will charge him with
being a member of the Shining Path if he returns to Peru. The IJ determined, however,
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that Arce-Garibay’s testimony was not entirely credible and the BIA correctly noted that
the documentary evidence submitted in support of Arce-Garibay’s asylum application
mentions only disciplinary “errors.” 2 In addition, we too find it unpersuasive that the
Peruvian military would falsely accuse Arce-Garibay -- who was educated and promoted
by the military and who was in charge of ninety soldiers and numerous aircraft -- of
consorting with the Shining Path simply because he was raised in a part of the country
closely linked with that terrorist group.3
Accordingly, we will DENY the petition for review of the BIA’s decision.
2
We also note that Arce-Garibay’s original asylum application made no mention of
the court martial proceeding against him.
3
Although the brief submitted by Arce-Garibay mentions in passing that he is entitled
to relief under the Convention Against Torture, he waived this argument by failing to
develop it in the body of his brief. See Reynolds v. Wagner, 128 F.3d 166, 178 (3d Cir.
1997) (“[A]n argument consisting of no more than a conclusory assertion . . . will be
deemed waived.”). We also note that this argument was not raised before the BIA. See
Alleyne v. INS, 879 F.2d 1177, 1182 (3d Cir. 1989) (explaining that courts of appeals lack
jurisdiction to entertain arguments not raised in appeal to BIA).
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TO THE CLERK:
Please file the foregoing not precedential opinion.
/s/ Walter K. Stapleton
____________________
Circuit Judge
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