Torres v. Attorney General

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
3-14-2008
Torres v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-1153
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 07-1153
No. 07-1154
____________
RODRIGO TORRES - 07-1153
REINALDO MOTTA - 07-1154
Petitioners,
v.
Attorney General of the United States,
Respondent.
____________
On Petition for Review from an
Order of the Board of Immigration Appeals
(Board Nos. A98-493-260, A98-493-261)
Immigration Judge: Mirlande Tadal
____________
Submitted Under Third Circuit LAR 34.1(a)
March 7, 2008
Before: BARRY, JORDAN and HARDIMAN, Circuit Judges.
(Filed: March 14, 2008 )
____________
OPINION OF THE COURT
____________
HARDIMAN, Circuit Judge.
In this consolidated appeal, Rodrigo Torres and Reinaldo Motta challenge the
Board of Immigration Appeals’ denial of their petitions for withholding of removal.
Appellants argue that the Immigration Judge (IJ) erred by refusing to consolidate their
petitions and by determining that they did not meet the standard for withholding. We will
deny the petitions for review.
I.
Torres and Motta are Colombian natives. They are HIV-positive gay men who
entered the United States on I-94 visas in 1999. Although they registered as partners
under the New Jersey Domestic Partnership Act of 2003, neither man applied for asylum.
In separate oral opinions dated August 8, 2005, the IJ denied their petitions for
withholding of removal and Convention Against Torture protection. The BIA adopted
and affirmed the IJ’s decisions in identical per curiam opinions.
II.
We have jurisdiction pursuant to 8 U.S.C. § 1252(a). Because the BIA not only
adopted the IJ’s decisions but also expanded upon them, our review encompasses both
decisions. Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004).
Appellants first argue that, because they are a “family unit,” the IJ erred in refusing
to consolidate their petitions. An IJ may consolidate the cases of different petitioners to
promote administrative efficiency as long as hearing the cases together does not deny the
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petitioners the right to fully litigate their claims. 8 C.F.R. § 1240.1(a)(iv); Matter of
Taerghodsi, 16 I&N Dec. 260, 262-63 (BIA 1977). Typically, consolidation is used
where a family member claims derivative asylum status through another family member,
or where two petitions rely on the same events. See, e.g., Segura v. Att’y Gen., 240 Fed.
Appx. 347, 348-49 (11th Cir. 2007); Jabba v. Att’y Gen., 195 Fed. Appx. 883, 884 n.1
(11th Cir. 2006). Consolidation is not required, however, and is generally disfavored
because of its potential to deprive petitioners of procedural due process rights. See
United States v. Barraza-Leon, 575 F.2d 218, 220 (9th Cir. 1978); Taerghodsi, 16 I&N
Dec. at 263.
In the case at bar, the IJ did not abuse her discretion when she decided to hear
Appellants’ petitions separately. First, even if Appellants constitute a “family unit,” there
is no derivative status for family members under the withholding of removal statute. See
8 U.S.C. § 1231(b)(3); Ali v. Ashcroft, 394 F.3d 780, 782 n.1 (9th Cir. 2005). Second,
Appellants’ petitions do not rely exclusively on the same incidents of alleged persecution.
Finally, Appellants were not prejudiced by the IJ’s refusal to consolidate because that did
not prevent Torres or Motta from testifying at each other’s hearings.
III.
Appellants next argue that the agency’s denials of their petitions were not
supported by substantial evidence as required by Gao v. Ashcroft, 299 F.3d 266, 272 (3d
Cir. 2002). Appellants were obligated to show that it was more likely than not that their
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“life or freedom would be threatened” upon their return to Colombia “because of their
race, religion, nationality, membership in a particular social group, or political opinion.”
8 U.S.C. § 1231(b)(3); 8 C.F.R. § 1208.16(b); Amanfi v. Ashcroft, 328 F.3d 719, 725 (3d
Cir. 2003). The threat of persecution must be “severe” and “does not encompass all
treatment that our society regards as unfair, unjust, or even unlawful or unconstitutional.”
Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993).
We assume without deciding that Appellants are members of a particular social
group. See Amanfi, 328 F.3d at 730; Matter of Toboso-Alfonso, 20 I&N Dec. 819, 822
(BIA 1990). Nevertheless, substantial evidence supports the BIA’s conclusion that
Appellants failed to carry their burden of demonstrating a clear probability that they
would be persecuted in Colombia. INS v. Stevic, 467 U.S. 407, 424 (1984). Torres
testified that he was fired from a job because a secretary discovered his relationship with
Motta. Motta testified that he was arrested and briefly detained during a police raid on a
discotheque. Although these incidents are evidence that Torres and Motta were harassed
and discriminated against, they do not rise to the level of persecution. See Fatin, 12 F.3d
at 1240; Ahmed v. Ashcroft, 341 F.3d 214, 218 (3d Cir. 2003); Kibinda v. Att’y Gen., 477
F.3d 113, 119 (3d Cir. 2007).
Nor does the documentary evidence in the record compel the conclusion that
Appellants face a clear probability of future persecution, see 8 C.F.R. § 1208.16(b)(2),
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because it shows increasing tolerance of homosexuals in Colombia.1 Accordingly, we
find that substantial evidence supports the agency’s determination that Appellants are not
entitled to withholding of removal. For the foregoing reasons, Appellants’ petitions for
review will be denied.
1
For example, the Colombian military permits openly gay men to serve in its
forces, and the Colombian Constitutional Court ruled that teachers cannot be dismissed
because of their sexual orientation.
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