Gutierrez de Pineres v. Ashcroft

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS December 2, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-60014
Summary Calendar
DIANA MERCEDES GUTIERREZ DE PINERES;
MELISSA SCHMULSON GUTIERREZ DE PINERES;
JOYCE SCHMULSON GUTIERREZ DE PINERES;
LESLIE C. SCHMULSON GUTIERREZ DE PINERES,
Petitioners,
versus
JOHN ASHCROFT, U.S. ATTORNEY GENERAL,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
(BIA No. A78 585 304)
(BIA No. A78 585 303)
(BIA No. A78 585 302)
(BIA No. A78 585 301)
Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Petitioners challenge the Board of Immigration Appeals’
(BIA’s) final order of removal on two grounds. The first ground is
predicated on the BIA’s summary affirmance of the Immigration Judge
(IJ) under the BIA’s streamlining regulation. The second ground
*
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that this opinion should not be published and is not precedent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.
challenges the IJ’s findings with respect to their asylum
applications. In addition, subsequent to the completion of
briefing on the petition, petitioners moved this court to reinstate
their voluntary departure.
Petitioners first claim is precluded by Soadjede v. Ashcroft,
324 F.3d 830 (5th Cir. 2003). Soadjede held that a former version
of the streamlining regulation (8 C.F.R. § 3.1(a)(7)) did not
violate due process. 324 F.3d at 832-33. In the present case, the
BIA affirmed the IJ on the basis of a materially identical
streamlining regulation found at 8 C.F.R. § 3.1(e)(4). (Albathani
v. INS, 318 F.3d 365, 376 n.7 (1st Cir. 2003), recognized that
3.1(a)(7) had been “restructured” as 3.1(e)(4).)
When the BIA issues a streamlined affirmance, we review the
IJ’s decision. See Soadjede, 324 F.3d at 832. Petitioners’ second
claim appears to be that there was not substantial evidence to
support each of several determinations made by the IJ with respect
to their asylum claim. We will uphold the IJ’s factual
determinations if they are supported by substantial evidence. See
Lopez-Gomez v. Ashcroft, 263 F.3d 442, 444 (5th Cir. 2001).
Petitioners claim they are eligible for asylum based on
persecution on account of political opinion. The IJ’s
determination that petitioners were persecuted for financial
reasons instead of political opinion is supported by sufficient
evidence.
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Petitioners’ claim that the IJ impermissibly required them to
disprove the existence of other motives behind their persecution is
also incorrect. The IJ found there was no evidence that the
persecution was motivated by political opinion; consequently, there
is no indication that the IJ erroneously required petitioners to
exclude all other possible motivations other than the statutory
factors. See Ontunez-Tursios v. Ashcroft, 303 F.3d 341, 350 (5th
Cir. 2002).
Regarding petitioners’ claim that their persecution was based
on membership in a particular social group, there is no evidence in
the record that would support a finding that they were persecuted
“on account of” membership in that group, as is required. See id.
at 352-53. Therefore the IJ’s decision to reject the claim is
supported.
Petitioners challenge the IJ’s determination that the
Colombian Government can control the Ejercito de Liberacion
Nacional (ELN) and, therefore, that the family’s relocation within
Colombia is feasible. The IJ, however, did not base the relocation
determination on a finding that the Colombian Government could
control the ELN. Instead, the IJ found that the Colombian
government was not the source of their persecution. Where an
asylum applicant has failed to establish that a national government
is responsible for the persecution, she has the burden of
establishing that relocation is not reasonable in the
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circumstances. See Lopez-Gomez, 263 F.3d at 445. The record
supports the IJ’s determination that petitioners failed to do so.
The final issue is petitioners’ post-briefing motion to
reinstate voluntary departure. We have never decided we have the
power to do so. See Faddoul v. INS, 37 F.3d 185, 192 (5th Cir.
1994); Farzad v. INS, 808 F.2d 1071, 1072 (5th Cir. 1987).
Petitioners never requested voluntary departure from the BIA; they
did not present the request in their brief; the Petition for Review
was filed on the 28th day of the 30-day departure period; a request
to an immigration official for extension of voluntary departure was
both made and denied after the period had expired. In these
circumstances, we decline to consider the question. Faddoul, 37
F.3d at 192-93.
DENIED
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