Tzoc v. Ashcroft ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 14, 2003
Charles R. Fulbruge III
Clerk
No. 02-60557
Summary Calendar
JUAN M. TZOC,
Petitioner,
versus
JOHN ASHCROFT, U.S. ATTORNEY GENERAL,
Respondent.
--------------------
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A76 415 908
--------------------
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
Juan M. Tzoc, a citizen of Guatemala, petitions for review
of the final order of the Board of Immigration Appeals ("BIA")
dismissing his appeal from the Immigration Judge ("IJ"). The IJ
denied Tzoc's application for asylum in which Tzoc alleged that
because of his race as a Quiche Indian and his membership in a
social group he had been persecuted by the Guatemalan army and by
guerrillas, both of which attempted to recruit him to fight in
the Guatemalan civil war. The BIA agreed with the IJ that Tzoc
failed to show past persecution or a well-founded fear of future
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
No. 02-60557
-2-
persecution. The BIA took administrative notice that the army
and the guerillas had signed peace accords in 1996 after Tzoc had
left the country and that the army no longer practiced forced
conscription.
Tzoc argues that he established both past persecution and a
well-founded fear of being persecuted if returned to Guatemala.
We conclude that the BIA's decision is supported by substantial
evidence and that the evidence in the record does not compel a
contrary conclusion.1
Tzoc also argues that the BIA erred in taking administrative
notice of country conditions in Guatemala without affording him
an opportunity to respond as to why such notice should not be
taken. The BIA did not abuse its discretion in taking
administrative notice of conditions in Guatemala that had an
effect on Tzoc's well-founded fear of persecution.2 To the
extent that Tzoc argues he was not given an opportunity to
respond to the administrative notice, the record indicates that
Tzoc filed a motion to reopen in the BIA arguing that
administrative notice was improper. A motion to reopen provides
a sufficient opportunity for an applicant to respond to
officially noticed facts.3 The record does not indicate that the
BIA has ruled on the motion to reopen, nor have the parties so
1
See INS v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992); Mikhael v.
INS, 115 F.3d 299, 302 (5th Cir. 1997).
2
See Rivera-Cruz v. INS, 948 F.2d 962, 966-67 (5th Cir. 1992).
3
See id. at 968.
No. 02-60557
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indicated. Because there is nothing before us to indicate that
the motion to reopen is not still pending, further review of this
issue is unwarranted.4
Finally, Tzoc argues that the BIA erred by not considering
his application under the Convention Against Torture, which he
asserts was enacted after his administrative hearing before the
IJ. Tzoc raised the Convention Against Torture in his motion to
reopen in the BIA. Because that motion is still pending, this
issue is not properly before us.5
Tzoc's petition for review is DENIED.
4
See Mamoka v. INS, 43 F.3d 184, 187 (5th Cir. 1995).
5
See Mamoka, 43 F.3d at 187-88.