Diego Sica-Lopez v. Attorney General United States of America ( 2023 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________________
No. 23-1042
_______________________
DIEGO SICA-LOPEZ; S. B. S-P,
Petitioners
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
_______________________
On Petition for Review of a Decision of the
Board of Immigration Appeals
(Agency Nos. A201-930-950 & A201-930-949)
Immigration Judge: Honorable David Cheng
__________________________
Submitted under Third Circuit L.A.R. 34.1 (a)
September 28, 2023
Before: KRAUSE, AMBRO, and SMITH, Circuit Judges
(Filed: September 29, 2023)
__________________________
OPINION *
__________________________
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
SMITH, Circuit Judge.
Diego Sica-Lopez and his son, S.B. S-P-, 1 are natives and citizens of Guatemala
who entered the United States in February 2019. They conceded the charge of
removability, but applied for asylum, withholding of removal, and relief under the
Convention Against Torture (CAT). Sica-Lopez claimed mistreatment amounting to
persecution and torture based on his membership in a particular social group that had
opposed a local mayor’s decision to allow a water company to divert river flow away
from Sica-Lopez’s village. The company’s action caused a loss of water to Sica-Lopez’s
home and crops.
During a hearing before the Immigration Judge (IJ), the IJ actively engaged in the
questioning of Sica-Lopez. The IJ found that Sica-Lopez was not credible and denied the
applications of both Sica-Lopez and his son for immigration relief. 2 Sica-Lopez appealed
to the Board of Immigration Appeals (BIA), asserting that he had been deprived of his
right to due process because the IJ repeatedly took over questioning him during the
hearing. Sica-Lopez also asserted that the adverse credibility finding was not supported
by substantial evidence, and that his claims for asylum, withholding and CAT relief
1
S.B. S-P- accompanied his father to the United States as a minor. At the hearing before
the immigration judge, S.B. S-P- confirmed that he had obtained the age of majority. His
application, however, derives from that of his father’s application.
2
The IJ concluded that Sica-Lopez’s asylum claim was time-barred but nevertheless
addressed the merits of his asylum claim.
2
should have been granted. The BIA affirmed the IJ’s decision and dismissed his appeal.
This timely petition for review followed. 3 We will deny that petition.
I.
At the outset of the hearing, the IJ asked Sica-Lopez and his son if counsel had
reviewed their applications with them and whether the applications were complete and
correct. Although the IJ allowed both of them to make any necessary changes before the
hearing began, both Sica-Lopez and his son saw no need to do so.
After hearing Sica-Lopez’s testimony, the IJ found that Sica-Lopez’s application
differed in several “substantial” respects from his testimony. A.R. 161. The disparities
related to, inter alia: the timing of various encounters with the mayor and his supporters;
the description of what transpired during each incident; the extent of the physical contact
to which Sica-Lopez was subjected; and the nature of threats that had been directed at
him.
Although the IJ questioned Sica-Lopez multiple times during the hearing, often
attempting to clarify his testimony, the IJ permitted Sica-Lopez’s counsel to resume
questioning each time. After Sica-Lopez testified that “the water is still running” in his
community, his counsel chose to rest his case. A.R. 239. The Government then cross-
examined Sica-Lopez, clarifying that he had been hit only one time on the hand during
3
The BIA had jurisdiction under 8 C.F.R. § 1003.1(b)(3) and § 1240.15. We have
jurisdiction under 8 U.S.C. § 1252(a). Because the BIA approved the findings of the IJ
and discussed the IJ’s reasoning, we review both the IJ’s and BIA’s decisions.
Abulashvili v. Att’y Gen., 663 F.3d 197, 202 (3d Cir. 2011). We apply de novo review to
a constitutional due process claim. Hernandez Garmendia v. Att’y Gen., 28 F.4th 476,
482 (3d Cir. 2022). Factual findings are reviewed for substantial evidence. Id.3
the encounters with the mayor and his supporters. And Sica-Lopez conceded that his
wife and children, who had remained in Guatemala, had not been threatened or harmed.
Sica-Lopez contends that the IJ’s questioning deprived him of his right to due
process, as we concluded was the case in Abulashvili v. Attorney General. 663 F.3d at
207. We are not persuaded. Unlike what occurred in Abulashvili, the IJ’s questioning
did not result in a failure by the IJ to consider the entire record. Id. at 208. Nor did the IJ
ignore crucial aspects of Sica-Lopez’s testimony. Id. Rather, many of the IJ’s questions
sought to clarify what had actually happened to Sica-Lopez, i.e., what was at the heart of
his claim. While Sica-Lopez asserts that he was denied the opportunity to fully present
his case, he has not explained how the presentation of his case was cut short or what facts
he would have developed had it not been for the IJ’s own questioning. Sica-Lopez’s
counsel questioned him initially on direct-examination and resumed her questioning after
each of the IJ’s efforts to clarify matters. She also advised the IJ when she had no further
questions. In the absence of a showing of some prejudice to the presentation of Sica-
Lopez’s case, we reject his due process claim. Serrano-Alberto v. Att’y Gen., 859 F.3d
208, 213 (3d Cir. 2017).
II.
Sica-Lopez also challenges the IJ’s adverse credibility finding, which the BIA
concluded was not clearly erroneous. 4 Given the disparity between Sica-Lopez’s
4
Credibility determinations are factual findings which we review for substantial
evidence, Zheng v. Ashcroft, 417 F.3d 379, 381 (3d Cir. 2005), “meaning that the
agency’s determination is conclusive unless the record compels a contrary
determination.” Sunuwar v. Att’y Gen., 989 F.3d 239, 250 (3d Cir. 2021).
4
testimony and his application and statement about what had transpired at the
confrontations over the water projects—as well as when they occurred— and mindful of
the IJ’s finding that Sica-Lopez’s testimony during the hearing was evasive, we conclude
that there is substantial evidence to support the adverse credibility finding.
III.
Finally, we turn to the merits of Sica-Lopez’s claims. He does not now challenge
the denial of his asylum application, pressing only his claims for withholding of removal
and CAT relief. Nonetheless, we consider the denial of asylum because “an alien who
fails to qualify for asylum is necessarily ineligible for withholding of removal.”
Ghebrehiwot v. Att’y Gen., 467 F.3d 344, 351 (3d Cir. 2006).
Even if Sica-Lopez had been a credible witness on his own behalf, we agree with
the agency that Sica-Lopez failed to establish either past persecution or a well-founded
fear of persecution necessary for asylum. Persecution “is an extreme concept that does
not include every sort of treatment our society regards as offensive.” Fatin v. I.N.S., 12
F.3d 1233, 1243 (3d Cir. 1993). Neither the encounters nor the threats that Sica-Lopez
testified about rise to the level of persecution. Without such a showing, we agree with
the agency that the evidence does not establish a basis for him to fear persecution if he
were returned to Guatemala. Accordingly, we conclude that the agency did not err in
rejecting Sica-Lopez’s claim for withholding of removal.
Sica-Lopez’s CAT claim also lacks sufficient merit. He did not meet his burden
of proving that “it is more likely than not that he . . . would be tortured if removed” to
Guatemala. 8 C.F.R. § 1208.16(c)(2).
5
For the above reasons, we will deny both Sica-Lopez’s and S.B. S-P-’s petition for
review.
6