Rocha v. Attorney General

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
11-6-2007
Rocha v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-5324
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 05-5324
____________
FELIPE VICTOR PEREIRA ROCHA,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________
On Petition for Review from an
Order of the Board of Immigration Appeals
(Board No. A96 258 085)
Immigration Judge: Eugene Pugliese
____________
Submitted Under Third Circuit LAR 34.1(a)
September 24, 2007
Before: McKEE, BARRY and FISHER, Circuit Judges.
(Filed: November 6, 2007)
____________
OPINION OF THE COURT
____________
FISHER, Circuit Judge.
This case comes to us on a petition for review of a final order of removal from the
Board of Immigration Appeals (“BIA”). Felipe Victor Pereira Rocha requests that we
find that the immigration judge (“IJ”) presiding over his hearing was so biased as to
violate his due process rights. In the alternative, he argues that the BIA, in affirming the
IJ’s decision, erred by denying his applications for asylum, withholding of removal, and
protection under the Convention Against Torture (“CAT”). For the reasons set forth
below, we will deny his petition.
I.
Because we write exclusively for the parties who are familiar with the factual
context and legal history of this case, we will set forth only those facts necessary to our
analysis. Felipe Victor Pereira Rocha was born in Portugal, but his family moved to
Venezuela when he was five, where he eventually became a citizen. Although he visited
the United States for two weeks as a visitor in 1994, he remained a full-time resident of
Venezuela until 1995 when he moved to the United States. Between 1995 and 1998,
Rocha lived and worked in the United States, but he traveled to Venezuela approximately
eight times. In 1999, Rocha was diagnosed as being HIV positive, and during his illness,
his then-current visa expired. On April 1, 2003, Rocha was placed in removal
proceedings. He conceded removability, but filed applications for asylum, withholding of
removal, and protection under the Convention Against Torture (“CAT”).
At a subsequent hearing, Rocha testified that he decided to file an asylum claim
after he became ill and learned that Venezuela does not have the same treatments for HIV
and AIDS that the United States has. He also testified that he had been harassed in
Venezuela because of his homosexuality. In particular, in or around 1990, the
2
Venezuelan police called him a “whore,” struck his boyfriend, and sexually assaulted him
with a gun, but he did not report the incident. In addition to Rocha’s testimony, he
presented the IJ with articles and reports regarding conditions in Venezuela. These
articles described his brother’s death,1 detailed the treatment of homosexuals,
transgendered individuals, and cross-dressers in Venezuela, and detailed the treatment of
those with HIV or AIDS in Venezuela.
The IJ found that Rocha’s asylum application was untimely with no excuse of
exceptional circumstances, and Rocha had failed to provide sufficient evidence to prove
that he was entitled to withholding of removal or relief under the CAT. The BIA adopted
and affirmed the IJ’s decision. Rocha timely filed a petition for review.
II.
We have jurisdiction to review a final order of removal from the BIA pursuant to 8
U.S.C. § 1252(a)(1).
A.
Rocha first claims that the IJ was so biased against him that it was a violation of
his due process rights.2 We review de novo whether an IJ’s bias resulted in a violation of
1
Rocha claims that the police murdered his brother, who was a homosexual. He
provided some testimony about his brother’s death, but the IJ stated that he was not sure
whether it was relevant how Rocha’s brother died.
2
Before an alien may bring a matter to this Court’s attention, he must exhaust his
administrative remedies. 8 U.S.C. § 1252(d)(1). A petitioner has exhausted his
administrative remedies before the BIA “so long as [he] makes some effort, however
insufficient, to place the Board on notice of a straightforward issue being raised on
3
an alien’s due process rights. Abdulrahman v. Ashcroft, 330 F.3d 587, 595-96 (3d Cir.
2003). At a minimum, due process requires the right to “‘be heard at a meaningful time
and in a meaningful manner.’” Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d Cir. 2001)
(quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976)). In the immigration context,
then, “due process requires that aliens threatened with deportation are provided the right
to a full and fair hearing that allows them a reasonable opportunity to present evidence on
their behalf.” Abdulrahman, 330 F.3d at 596 (internal quotation marks and citation
omitted). In order to ensure such a “full and fair hearing,” an alien facing removal
proceedings is entitled to an IJ who is neutral and impartial. Id.
An IJ’s statements and behavior while conducting a hearing may rise to the level
of a due process violation where the IJ insults and belittles a petitioner. See Wang v. Att’y
Gen., 423 F.3d 260, 265-69 (3d Cir. 2005) (calling the petitioner a “horrible parent,” and
stating that she found it “infuriating” that Wang “never even one time did anything
honest”). However, mere discourtesy on the part of an IJ is insufficient to constitute a
due process violation. See Abdulrahman, 330 F.3d at 597 (stating that a due process
violation had not occurred even though the IJ’s language “reflect[ed] an annoyance and
dissatisfaction with [the alien]’s testimony that is far from commendable”).
appeal.” Yan Lan Wu v. Ashcroft, 393 F.3d 418, 422 (3d Cir. 2005) (citing Bhiski v.
Ashcroft, 373 F.3d 363, 367-68 (3d Cir. 2004)). Rocha raised the issue of bias, and
therefore, the BIA was on notice that this bias could have affected any of the types of
relief Rocha sought to establish.
4
In support of his claim that the IJ was biased, Rocha points to two portions of the
record. The IJ questioned Rocha regarding (1) whether he has HIV or AIDS; and (2) his
receipt of federal funds to pay for his AIDS medication. While the IJ seemed annoyed
during these portions of the hearing, his statements and overall behavior were not so
severe that he abdicated his role as a neutral and impartial arbiter. Therefore, the IJ’s
behavior did not rise to the level of a violation of Rocha’s due process rights.3
B.
Rocha petitions for review of the IJ’s denial of his applications for asylum,
withholding of removal, and protection under the CAT.4 Where, as here, the BIA has
adopted a portion of the IJ’s decision, we review the decisions of both the BIA and the IJ.
Shehu v. Att’y Gen., 482 F.3d 652, 657 (3d Cir. 2007). We review the factual
3
Rocha also argues that the IJ’s bias led him to improperly refuse to consider two
pieces of evidence: (1) his brother’s death; and (2) a policy statement from the Office of
the General Counsel regarding HIV and AIDS policies. With regard to his brother’s
death, although the evidence may have been relevant to his claim, he cannot demonstrate
that the failure to present this evidence potentially affected the outcome of his case
because substantial evidence supported the IJ’s determination. See Cham v. Att’y Gen.,
445 F.3d 683, 693-94 (3d Cir. 2006) (holding that the persecution of an alien’s family
members can be relevant to an alien’s asylum claim, but the alien would also need to
demonstrate that not admitting the evidence prejudiced his claim). With regard to the
policy statement, the IJ did not err in his refusal to accept it as evidence because he is not
bound by the policy statement, and further, counsel did not comply with the IJ’s internal
procedure to submit all documentation ten days prior to the hearing. For the reasons
described above, we find these arguments unavailing.
4
We may not review Rocha’s asylum claim. The IJ and BIA properly found that
Rocha failed to file an application for asylum within one year of his last entry into the
United States, and we may not review their determination that Rocha failed to show
extraordinary circumstances relating to his delay in filing. See 8 U.S.C. § 1158(a)(2)(B),
(3).
5
determinations of the BIA and IJ for substantial evidence, and uphold the decisions if
they are “supported by reasonable, substantial, and probative evidence on the record
considered as a whole.” Balasubramanrim v. INS, 143 F.3d 157, 161 (3d Cir. 1998)
(internal quotation marks and citation omitted). “[T]he BIA’s [and IJ’s] finding must be
upheld unless the evidence not only supports a contrary conclusion, but compels it.”
Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir. 2001).
Pursuant to the Immigration and Nationality Act, the Attorney General may not
remove an alien to his country of origin if his “life or freedom would be threatened in that
country because of [his] race, religion, nationality, membership in a particular social
group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A). In order to qualify for
withholding of removal under § 1231, an alien must show the threat by a clear
probability. INS v. Stevic, 467 U.S. 407, 430 (1984). “A clear probability means ‘more
likely than not.’” Tarrawally v. Ashcroft, 338 F.3d 180, 186 (3d Cir. 2003) (quoting
Stevic, 467 U.S. at 429-30).
Here, substantial evidence supports the IJ’s determination that Rocha failed to
show that it was more likely than not that his life or freedom would be threatened in
Venezuela based on his sexual preference. His decision to remain in Venezuela for many
years after the alleged abuse and his eight extended trips to Venezuela after he moved to
the United States undercut Rocha’s claim that his life or freedom would be threatened in
Venezuela. Moreover, he stated that he decided to file for asylum because of the lack of
medication in Venezuela, and the IJ found that was the real reason for his application.
6
Based on the record as a whole, reasonable, substantial, and probative evidence existed
for the IJ’s conclusion that Rocha did not qualify for withholding of removal.
In order to meet the requirements for protection under the CAT, an applicant must
prove “that it is more likely than not that he or she would be tortured if removed to the
proposed country of removal.” 8 C.F.R. § 1208.16(c)(2). “Torture is an extreme form of
cruel and inhuman treatment and does not include lesser forms of cruel, inhuman or
degrading treatment or punishment that do not amount to torture.” 8 C.F.R.
§ 1208.18(a)(2). Rocha has not provided any evidence that rises to the level of torture.
Therefore, substantial evidence also supports the BIA’s and IJ’s decision that Rocha was
ineligible for relief under the CAT.
IV.
For the reasons set forth above, we will deny Rocha’s petition for review.
7