Blanco De Belbruno v. Ashcroft

• Decision Date: 29 March 2004
• Docket Number: No. 02-2142.,02-2142.
• Citation: 362 F.3d 272
• Parties: Maria Isabel BLANCO DE BELBRUNO; Juan Belbruno; Maria Belem Belbruno-Blanco; Juan Francisco Belbruno-Blanco; Juan Fernando Belbruno-Blanco; Maria Isabel Belbruno-Blanco, Petitioners, v. John D. ASHCROFT, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 272

362 F.3d 272

Maria Isabel BLANCO DE BELBRUNO; Juan Belbruno; Maria Belem Belbruno-Blanco; Juan Francisco Belbruno-Blanco; Juan Fernando Belbruno-Blanco; Maria Isabel Belbruno-Blanco, Petitioners, v. John D. ASHCROFT, Attorney General, Respondent.

No. 02-2142.

United States Court of Appeals, Fourth Circuit.

Argued: January 20, 2004.

Decided: March 29, 2004.

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ARGUED: Ivan Yacub, Falls Church, Virginia, for Petitioners. Carol Federighi, Civil Division, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent. ON BRIEF: Robert D. McCallum, Jr., Assistant Attorney General, Terri J. Scadron, Assistant Director, Genevieve Holm, Attorney, Civil Division, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.

Before WILKINSON, GREGORY, and SHEDD, Circuit Judges.

Affirmed by published opinion. Judge WILKINSON wrote the opinion, in which Judge GREGORY and Judge SHEDD joined.

OPINION

WILKINSON, Circuit Judge:

Maria Isabel Blanco de Belbruno ("Belbruno"), a native and citizen of Guatemala, petitions for review of an order of the Board of Immigration Appeals ("BIA") that denied her application for asylum and for withholding of removal, as well as her five family members' derivative claims. Belbruno argues that the summary affirmance of the Immigration Judge's decision by a single member of the BIA violated her due process rights. She questions whether the Attorney General possessed the authority to issue the streamlining regulations that created these summary procedures and claims that the application of these regulations to her case had constitutionally impermissible retroactive effects. She also asserts that the BIA erred in finding that she had failed to demonstrate past persecution or a well-founded fear of future persecution. We reject each of Belbruno's various claims and affirm the judgment of the BIA.

I.

Maria Belbruno, her husband, Juan Belbruno, and their four children, Maria Belem Belbruno-Blanco ("Maria Belem"), Juan Francisco Belbruno-Blanco ("Juan Francisco"), Juan Fernando Belbruno-Blanco ("Juan Fernando"), and Maria Isabel Belbruno-Blanco ("Maria Isabel") entered the United States from Guatemala during December 1990. Maria Belbruno and the four children are natives and citizens of Guatemala. Juan Belbruno is a native and citizen of Argentina. The family initially entered legally on non-immigrant visas, but overstayed their visas by approximately eighteen months before Juan Belbruno filed an application for political asylum with the Immigration and Naturalization Service ("INS") on December 23, 1992.¹

On June 29, 1998, the INS charged the Belbrunos with removability for remaining longer than permitted after admission as non-immigrant visitors in violation of the Immigration and Nationality Act ("INA"). See INA § 237(a)(1)(B) (codified at 8 U.S.C. § 1227(a)(1)(B) (2000)). On November 30, 1998, the INS also charged Maria Belbruno and Maria Belem with removability as immigrants not in possession of valid entry documents at the time of their application for admission, because they had returned to Guatemala in March 1998 and subsequently reentered the United States without valid visas. See INA § 212(a)(7)(A)(i)(I) (codified at 8 U.S.C. § 1182(a)(7)(A)(i)(I) (2000)).

All six members of the Belbruno family conceded that they were removable as charged. After Juan Belbruno withdrew his application for asylum, Maria Belbruno filed for political asylum in her own name, and the claims of Juan Belbruno and their four children became derivative to her application. See 8 U.S.C. § 1158(b)(3) (2000); 8 C.F.R. § 1208.21(a) (2002).

In her application, Maria Belbruno stated that she was seeking asylum on behalf of her family due to numerous threats that they had received "from the guerrilla[s] and the government" because of her husband's participation in a human rights advocacy group. Juan Belbruno testified at their asylum hearing that he had joined a group called "Pro Human Rights" in 1980 and explained that it "was against the government, the army and the guerillas." He claimed that he had provided the group financial support and participated in its activities by distributing flyers, attending meetings, and organizing rallies. He testified that he belonged to the group from 1980 until December 20, 1990, and explained that his family began to experience problems as a result of his participation in late 1989. He claimed that the family received seven or eight threatening phone calls. One of the Belbrunos' children, Juan Francisco, testified that he answered the phone on one occasion and a man's voice said, "[w]e're going to kill someone from your family."

Additionally, on December 10, 1990, unknown gunmen assertedly fired shots at the Belbruno's home at 2 A.M. in the morning. Juan Belbruno testified that he did not know who fired the shots, but assumed that it was "members of the police department, members of the government, [or] any members that don't want us to be in public acts and say the truth." Several members of the family testified that they heard loud sounds or gun shots the night of shooting and that they were scared and crying. The family abandoned their house that evening and stayed with Maria Belbruno's relatives. Juan Belbruno testified that he fled to El Salvador for two or three days, returned to Guatemala for his family, and then brought them to the United States. He stated that he was afraid of returning with his family to Guatemala, but when asked who he feared, he stated, "[i]t's hard to say a specific person."

Maria Belbruno and her oldest daughter, Maria Belem, returned to Guatemala in March 1998, so that Maria Belbruno could have cancer surgery. Although Belbruno had already undergone two operations in the United States, she decided to return to Guatemala to take advantage of reduced medical costs for surgery that she could have received in the United States. Maria Belem testified that she was scared to return and that she stayed in Guatemala for twenty-eight days "without going out anywhere." She conceded that she and her mother did not experience any problems during their stay, but maintained that she was afraid of "everything."

Belbruno also called Alfredo Forte, an expert on human rights in Guatemala. He testified that he had served on a United Nations mission that investigated compliance with a human rights accord that had been signed in Guatemala. Forte stated that the individuals currently facing harassment in Guatemala are those involved in investigating human rights abuses.

At the conclusion of the asylum hearing, the Immigration Judge denied Maria Belbruno's application for asylum and withholding of removal. In denying asylum, the Immigration Judge found that Maria Belbruno failed to establish past persecution based on claims of anonymous telephone threats and a single shooting incident by unknown individuals at her house in 1990. The Immigration Judge held Belbruno could not show that these incidents were on account of her husband's activities with the human rights organization. The judge also found that Belbruno failed to establish a well-founded fear of future persecution. She noted that Belbruno "indicated her willingness to return to Guatemala by returning there" for twenty-eight days in 1998 to secure cheaper medical treatment and that Belbruno and her daughter experienced no problems during their return and thus could not be considered refugees.

The judge did agree with Belbruno's own expert that the people experiencing some difficulties in Guatemala are those involved with "investigation of the prior human rights abuses." Because neither Juan Belbruno nor his wife had ever investigated human rights abuses, however, the judge found that Maria Belbruno did not have a "well-founded basis to fear harm at this time." Finally, the judge noted that a State Department Report indicated there had been "a significant improvement in the overall human rights situation" and that the government of Guatemala has "generally cooperated" with United Nations investigations into human rights violations. The judge concluded that conditions have greatly improved in this area since the time that the Belbrunos entered the United States in 1990. The BIA affirmed without opinion the Immigration Judge's order denying Maria Belbruno's applications for asylum and for withholding of removal. Belbruno appealed to this court to review the BIA's decision. See 8 U.S.C. § 1252(b) (2000).

II.

This court reviews legal issues, including claims of due process violations, de novo. See Nwolise v. INS, 4 F.3d 306, 309 (4th Cir. 1993). BIA determinations concerning asylum eligibility or withholding of removal are conclusive "if supported by reasonable, substantial, and probative evidence on the record considered as a whole." INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (internal citation omitted); see also Gonahasa v. INS, 181 F.3d 538, 541 (4th Cir.1999). If an alien "seeks to obtain judicial reversal of the BIA's determination, he must show that the evidence he presented was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution." Elias-Zacarias, 502 U.S. at 483-84, 112 S.Ct. 812; see also Rusu v. INS, 296 F.3d 316, 325 n. 14 (4th Cir.2002); Chen Zhou Chai v. Carroll, 48 F.3d 1331, 1338 (4th Cir.1995). "This narrow standard of review recognizes the respect we must accord both the BIA's expertise in immigration matters and its status as the Attorney General's designee in deportation decisions." Huaman-Cornelio v. BIA, 979 F.2d 995, 999 (4th Cir.1992).

Belbruno raises a number of procedural challenges to the decisions of the Immigration Judge and BIA. First, she claims that the stream-lining regulations promulgated by the Attorney General are inconsistent with the INA. See 8...