Gallego-Arroyave v. Holder

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 12, 2012
Elisabeth A. Shumaker
Clerk of Court
JAIME GALLEGO-ARROYAVE,
Petitioner,
v. No. 12-9537
(Petition for Review)
ERIC H. HOLDER, JR.,
Respondent.
ORDER AND JUDGMENT*
Before KELLY, O’BRIEN, and MATHESON, Circuit Judges.
Jaime Gallego-Arroyave, a native of Columbia, seeks review of an order
entered by the Board of Immigration Appeals (BIA) affirming the removal order of
an Immigration Judge (IJ). The BIA dismissed his asylum claim as untimely, denied
his claim for restriction on removal,1 and denied his request for voluntary departure.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
petition for review. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1
The parties refer to “withholding of removal,” a term retained in the
regulations under the Immigration and Nationality Act. See, e.g., 8 C.F.R.
§ 208.16(b). We refer instead to “restriction on removal,” pursuant to the
(continued)
We exercise jurisdiction under 8 U.S.C. § 1252(a)(1), dismiss the
voluntary-departure claim for lack of jurisdiction, and deny the petition for review.
I. BACKGROUND
Mr. Gallego2 entered the United States on February 7, 1999, and was
authorized to stay until March 6, 1999, but he did not depart. Consequently, the
Department of Homeland Security commenced removal proceedings against him,
charging him with removability as an alien who remained in the United States longer
than permitted. See 8 U.S.C. § 1227(a)(1)(B). He conceded his removability, and
requested asylum and restriction on removal. He filed his application for asylum on
March 13, 2007, eight years after he arrived in the United States. The IJ held a
hearing at which Mr. Gallego and his sister testified.
Claiming past persecution, Mr. Gallego testified that the Revolutionary Armed
Forces of Columbia (FARC) attempted to murder his father in 1980 by arranging a
motorcycle accident. In his application for asylum and restriction on removal,
however, he described the accident as having occurred under circumstances that were
not clear. The application also described his father’s death in 1990 after he was hit
by a truck as happening under strange circumstances, while he testified at the hearing
that his father was murdered by FARC.
statutory definition. See 8 U.S.C. § 1231(b)(3); Razkane v. Holder, 562 F.3d
1283, 1285 n.1 (10th Cir. 2009).
2
The hearing transcript indicates that petitioner is properly referred to as
“Mr. Gallego.”
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Mr. Gallego also claimed that in 1990 he avoided two bomb explosions
because his scheduled arrival had been delayed both times. He testified that in 1992,
he was assaulted on the street with a knife and called a “sapo.” According to
Mr. Gallego, “sapo” is a Spanish word for “snitch.” He was injured in the attack and
received stitches at a hospital. He did not produce the medical records because the
hospital no longer exists. In 1994, the windows of his home were broken and “sapo”
was called out. After his mother was elected mayor of their town, Mr. Gallego was
stopped on the road in 1998 and given a large sum of cash for his mother to buy
supplies for FARC. His mother told him not to worry about it and not to take
anything else from them. Mr. Gallego testified that his cousin had been killed by
FARC, although his asylum application stated that the cousin had disappeared.
Mr. Gallego’s mother and sister have traveled to the United States and back to
Columbia without incident.
The IJ issued an oral decision concluding that Mr. Gallego’s asylum
application, filed eight years after he arrived in the United States, was outside the
statutory one-year time limit, see 8 U.S.C. § 1158(a)(2)(B), and he had not shown
that any exceptions applied, see id. § 1158(a)(2)(D). The IJ found Mr. Gallego
generally credible but he had embellished the circumstances of his father’s death and
his cousin’s disappearance. The IJ denied his application for restriction on removal,
concluding that he had “not shown that it was more likely than not that he would face
persecution upon return to Colombia based on one of the protected grounds.”
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Admin. R. at 102. The IJ also denied him voluntary departure because he did not
possess a valid passport. The BIA denied relief, concluding that the asylum
application was correctly dismissed as untimely and affirming the IJ’s determinations
on the other claims.
On appeal, Mr. Gallego asserts that the denial of his asylum application as
untimely violated the Constitution. In the alternative, he contends that he
demonstrated extraordinary or changed circumstances warranting asylum. He further
asserts that the BIA erred in its credibility determination and in its finding that he had
failed to establish persecution to warrant restriction on removal. Finally, he contends
that he was eligible for voluntary departure based on his expired passport and other
identification documents.
II. DISCUSSION
A. Standards of Review
A single member of the BIA entered the BIA’s brief affirmance order under
8 C.F.R. § 1003.1(e)(5). We therefore review the BIA’s decision as the final order of
removal but “may consult the IJ’s opinion to the extent that the BIA relied upon or
incorporated it.” Sarr v. Gonzales, 474 F.3d 783, 790 (10th Cir. 2007). In addition,
“when seeking to understand the grounds provided by the BIA, we are not precluded
from consulting the IJ’s more complete explanation of those same grounds.” Id.(internal quotation marks omitted).
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Although we review the BIA’s legal determinations de novo, we review its
factual findings under the substantial evidence standard. Witjaksono v. Holder,
573 F.3d 968, 977 (10th Cir. 2009). Thus, we must “look to the record for
‘substantial evidence’ supporting the agency’s decision: [O]ur duty is to guarantee
that factual determinations are supported by reasonable, substantial and probative
evidence considering the record as a whole.” Uanreroro v. Gonzales, 443 F.3d 1197,
1204 (10th Cir. 2006) (internal quotation marks omitted). “The agency’s findings of
fact are conclusive unless the record demonstrates that ‘any reasonable adjudicator
would be compelled to conclude to the contrary.’” Ismaiel v. Mukasey, 516 F.3d
1198, 1204 (10th Cir. 2008) (quoting 8 U.S.C. § 1252(b)(4)(B) (further quotation
omitted)). “[O]ur review is confined to the reasoning given by the [agency], and we
will not independently search the record for alternative bases to affirm.” Ritonga v.
Holder, 633 F.3d 971, 974 (10th Cir. 2011) (internal quotation marks omitted).
B. Asylum
Asylum applicants are required to file their applications within one year of
arriving in the United States. 8 U.S.C. § 1158(a)(2)(B). An exception to this
one-year filing deadline may be given if the application shows changed or
extraordinary circumstances that affected the applicant’s ability to meet the deadline.
Id. § 1158(a)(2)(D). This court lacks general jurisdiction to review a determination
relating to the timeliness of an asylum application. Id. § 1158(a)(3); Diallo v.
Gonzales, 447 F.3d 1274, 1281 (10th Cir. 2006). Although “challenges directed
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solely at the agency’s discretionary and factual determinations remain outside the
scope of judicial review,” Diallo, 447 F.3d at 1281, this court does have jurisdiction
to review a claim that the BIA’s application of the one-year deadline violated his
constitutional rights, 8 U.S.C. § 1252(a)(2)(D); Diallo, 447 F.3d at 1281. Although
Mr. Gallego did not raise his constitutional claim to the BIA, “exhaustion of
constitutional challenges to the immigration laws [is not required] because the BIA
has no jurisdiction to review such claims,” Vicente-Elias v. Mukasey, 532 F.3d 1086,
1094 (10th Cir. 2008) (internal quotation marks omitted).
Mr. Gallego first asserts that the one-year asylum deadline violates the
Constitution because it does not serve its intended purpose of preventing aliens from
delaying their departure from the United States. He maintains that an alien can
achieve a departure delay by filing for restriction on removal, a form of relief not
subject to the one-year time bar. While it is true that a request for restriction on
removal is not subject to the time bar, Wei v. Mukasey, 545 F.3d 1248, 1250
(10th Cir. 2008), those applicants must meet a stricter standard than asylum
applicants. See INS v. Cardoza Fonseca, 480 U.S. 421, 444 (1987) (stating that
refugees “who can show a clear probability of persecution are entitled to mandatory
suspension of deportation and eligible for discretionary asylum,” and refugees “who
can only show a well-founded fear of persecution are not entitled to anything, but are
eligible for the discretionary relief of asylum”). The Supreme Court has endorsed the
distinction between these categories of refugees. See id. at 441. Thus we perceive no
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constitutional violation. We consider below Mr. Gallego’s arguments concerning
restriction on removal.
As part of his constitutional challenge, Mr. Gallego argues that the one-year
deadline was improperly applied to deprive him of asylum even though he “expressed
a ‘reasonable possibility’ of his legitimate fear of being returned to his home
country,” which prevented him from timely filing for asylum. Aplt. Opening Br. at
27. But this contention is in fact a claim that his fear qualified as extraordinary or
changed circumstances, which this court is without jurisdiction to review. See
§ 1158(a)(3); Diallo, 447 F.3d at 1281.3 Accordingly, we reject his constitutional
challenges.
C. Credibility
Mr. Gallego complains that the IJ and the BIA found that he “embellished” the
evidence concerning his father’s death and his cousin’s disappearance. He contends
that the IJ should have accepted his explanations for why his hearing testimony
differed from his prior written statements. He also argues that the IJ improperly
required him to produce medical records from a hospital that no longer exists.
The IJ was explicitly authorized to weigh the consistency of Mr. Gallego’s
written and oral statements. 8 U.S.C. § 1229a(c)(4)(C). This court does not evaluate
3
Mr. Gallego’s brief also mentions that the one-year deadline violated his due
process rights, but he has provided no argument or authority to support such a claim.
Therefore, we do not address it. See Palma-Salazar v. Davis, 677 F.3d 1031, 1037
(10th Cir. 2012) (declining to address assertion not supported by argument or legal
authority).
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the credibility of witnesses. Ferry v. Gonzales, 457 F.3d 1117, 1130 (10th Cir.
2006). Rather, “[c]redibility determinations are factual findings subject to the
substantial evidence test.” Sarr, 474 F.3d at 789 (internal quotation marks and
ellipsis omitted). We conclude that substantial evidence supports the BIA’s
determination that parts of Mr. Gallego’s hearing testimony were inconsistent with
his written documents. As for the lack of hospital records, the IJ observed only that
the lack of hospital records indicated that Mr. Gallego’s injuries did not require
hospitalization, and he does not claim they did.
D. Restriction on Removal
Mr. Gallego asserts that the BIA improperly denied his request for restriction
on removal based on his past persecution in Columbia and his fear that he would be
persecuted if he were to return to Columbia. “To obtain restriction on removal, the
alien must demonstrate that [his] ‘life or freedom would be threatened in [the
proposed country of removal] because of [his] race, religion, nationality, membership
in a particular social group, or political opinion.’” Tulengkey v. Gonzales, 425 F.3d
1277, 1280 (10th Cir. 2005) (quoting 8 U.S.C. § 1231(b)(3)(A)). Mr. Gallego claims
persecution because of his political opinion—he supports the government against
FARC—and his membership in a particular social group—he is a member of a
wealthy family of business people, entrepreneurs, influential people, and government
representatives.
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To establish persecution, Mr. Gallego relies on the following evidence: his
father’s 1980 motorcycle accident and 1990 truck accident that caused his death, two
missed bomb explosions in 1990, the 1992 knife attack during which he was called a
“sapo,” the 1994 broken windows at his home and accusation of being a “sapo,” the
money given to him in 1997 for his mother to buy supplies for FARC, and his
cousin’s disappearance. The IJ determined that the attacks on his father and his
cousin’s disappearance were not persecution of Mr. Gallego, and that the knife
incident, although serious, was not sufficiently severe to induce him to leave
Columbia at that time. The IJ decided that the remaining incidents were not
sufficiently severe to amount to persecution. The IJ found further that Mr. Gallego
had not established that any claimed persecution was on account of his political
opinion or membership in a particular social group. The BIA incorporated the IJ’s
reasons in its decision and upheld the ruling.
We conclude that the BIA’s determination that these events are not sufficiently
severe to amount to persecution is supported by substantial evidence. Cf. Ritonga,
633 F.3d at 976 (concluding alien had not established persecution through evidence
of one occasion in which she was physically injured, an attack on her car, and a
church-bombing and rioting not individually targeting or harming alien); Tulengkey,
425 F.3d at 1280-81 (noting “denigration, harassment, and threats” are insufficient to
establish persecution; finding no past persecution where alien was robbed, fondled,
and suffered a minor head injury). Even considering the incidents collectively,
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recognizing that “the cumulative effects of multiple incidents may constitute
persecution,” Ritonga, 633 F.3d at 975, the BIA’s determination that Mr. Gallego did
not establish past persecution is supported by substantial evidence. Consequently,
we need not consider whether any persecution was on account of political opinion or
membership in a social group.
Even though Mr. Gallego failed to prove past persecution, we consider his
claim of a well-founded fear of future persecution. See 8 C.F.R. § 1208.13(b).
“Without a showing of past persecution, an alien must demonstrate that it is more
likely than not that he will be individually persecuted in the future.” Witjaksono,
573 F.3d at 977. “For a fear of future persecution to be well-founded, it must be both
subjectively genuine and objectively reasonable.” Ritonga, 633 F.3d at 976 (internal
quotation marks omitted).
Mr. Gallego’s claim of future persecution is based on the same events he relied
on to establish past persecution. Having found that those events do not rise to the
level required to prove past persecution, we conclude that they also cannot establish a
well-founded fear of persecution.
After reviewing the record, we cannot conclude that a reasonable fact-finder
would be compelled to find it more likely than not that Mr. Gallego would be
persecuted upon his return to Columbia. Accordingly, the BIA did not err in finding
that he failed to show past persecution or a well-founded fear of persecution.
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E. Voluntary Departure
Finally, we address Mr. Gallego’s claim that the BIA erred in denying him
post-hearing voluntary departure because he did not have a valid passport. Pursuant
to 8 U.S.C. § 1229c(b), “[t]he Attorney General may permit an alien voluntarily to
depart the United States at [his] own expense” if an IJ grants voluntary departure and
makes certain findings. Although “constitutional claims involving voluntary
departure are within our jurisdiction,” Kechkar v. Gonzales, 500 F.3d 1080, 1084
(10th Cir. 2007), Mr. Gallego does not make such a claim. Therefore, “we lack
jurisdiction to review [the] immigration judge’s refusal to grant voluntary departure,”
and we dismiss this claim. Ekasinta v. Gonzales, 415 F.3d 1188, 1190, 1195
(10th Cir. 2005) (citing 8 U.S.C. § 1229c(f)).
III. CONCLUSION
For the reasons stated, Mr. Gallego’s voluntary departure claim is dismissed
and the petition for review is otherwise denied.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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