Reynoso-Lopez v. Ashcroft

• Decision Date: 25 May 2004
• Docket Number: No. 02-3278.,02-3278.
• Citation: 369 F.3d 275
• Parties: Demetrio REYNOSO-LOPEZ, Petitioner v. John ASHCROFT, Attorney General of the United States of America, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

369 F.3d 275

Demetrio REYNOSO-LOPEZ, Petitioner v. John ASHCROFT, Attorney General of the United States of America, Respondent.

No. 02-3278.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit LAR 34.1(a) June 2, 2003.

Filed May 25, 2004.

COPYRIGHT MATERIAL OMITTED

Michael Morrone, Bloomington, IN, for Petitioner.

John D. Williams, Michael P. Lindemann, Jocelyn L. Wright, Erica A. Franklin, United States Department of Justice, Office of Immigration Litigation, Ben Franklin Station, Washington, DC, for Respondent.

Before BARRY, FUENTES, and ROSENN, Circuit Judges.

FUENTES, Circuit Judge.

The principal issue presented by this appeal is whether this Court has the authority to reinstate a grant of voluntary departure and extend the departure date previously ordered by an Immigration Judge ("IJ") and affirmed by the Board of Immigration Appeals ("BIA"). In this case, the petitioner, Demetrio Reynoso-Lopez (hereinafter "Reynoso"), seeks review of the BIA's decision affirming the IJ's denial of his application for asylum and withholding of removal under the Immigration and Nationality Act ("INA"), 8 U.S.C. §§ 1158(a) and 1253(h), and protection under the Convention Against Torture ("CAT"). In the alternative, Reynoso asks us to reinstate the now expired thirty-day voluntary departure order granted to him by the IJ and reinstated by the BIA under 8 U.S.C. § 1229c(b)(1).

According to Reynoso, he failed to depart voluntarily because he wanted to stay in this country to appeal the BIA's decision of his request for asylum. He contends that, as a matter of due process, we have jurisdiction to reinstate the expired voluntary departure date in the event that we affirm the BIA's denial of his asylum claim. We disagree. Based on the plain language of the immigration statutes and regulations, which clearly grant the power to reinstate or extend voluntary departure solely to the Attorney General and his delegates at the Immigration and Naturalization Service ("INS"), we conclude that we lack the jurisdictional authority to reinstate or extend a voluntary departure order.

I.

Reynoso is a twenty-seven year old native of Guatemala. He claims that when he was ten years old, he was held in confinement by Guatemalan guerrillas. He claims to have escaped to Mexico, where he lived for the next six years. In 1993, at the age of sixteen, Reynoso entered the United States without a visa.¹ On March 19, 1994, he applied for asylum, withholding of removal, and protection under the CAT. In the alternative, he requested voluntary departure. On October 19, 1998, the INS charged him with being removable for entering the United States without having been admitted or paroled.

In removal proceedings on January 28, 1999, Reynoso conceded removability and requested reconsideration of his previous petition for asylum. On January 20, 2000, the IJ denied all relief, but granted Reynoso voluntary departure until March 6, 2000. On July 23, 2002, the BIA affirmed the IJ without opinion. The BIA also granted Reynoso voluntary departure within thirty days of the date of its order.

Reynoso now appeals the decision of the BIA. He raises two primary issues on appeal: (1) whether the BIA erred in affirming the IJ's denial of his petition for asylum; and (2) whether this Court has the jurisdictional authority to reinstate an expired grant of voluntary departure.

We review the IJ's decision to grant or deny asylum for abuse of discretion.

8 U.S.C. § 1252(f)(4)(D). Thus, our review of the IJ's factual findings, which were adopted by the BIA, is deferential. Factual findings, such as credibility determinations, are "conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B). We must establish whether the BIA's factual determinations are supported by substantial evidence. See Senathirajah v. INS, 157 F.3d 210, 216 (3d Cir.1998). This standard is "even more deferential" than the "clearly erroneous" standard, and requires us to sustain an adverse credibility determination "unless ... no reasonable person" would have found the applicant incredible. See Concrete Pipe & Products of CA v. Construction Laborers Pension Trust for Southern CA, 508 U.S. 602, 623, 113 S.Ct. 2264, 124 L.Ed.2d 539 (1993). "Adverse credibility findings are afforded substantial deference so long as the findings are supported by specific cogent reasons." Gao v. Ashcroft, 299 F.3d 266, 276 (3d Cir.2002) (citation omitted).

II.

In regard to Reynoso's appeal from the denial of his application for asylum, the IJ, after assessing Reynoso's credibility, determined that Reynoso "failed to establish a well-founded fear of persecution as is necessary in order to be statutorily eligible for asylum." Because Reynoso failed to establish eligibility for asylum, he necessarily failed to meet the more stringent standard for showing a "clear probability of persecution" to be eligible for withholding of deportation. INS v. Stevic, 467 U.S. 407, 420 n. 13, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984). Similarly, based on the respondent's testimony and the evidence of the record, he did not offer sufficient evidence for withholding of removal under the CAT. We have carefully reviewed the entire record and find no basis for disturbing the IJ's thorough and well-reasoned oral opinion. We add only the following to underscore our agreement with that decision.

At the hearing before the IJ, Reynoso testified that, at the age of 10, he and his family were captured by a band of guerillas in Guatemala and taken from their home town of Quilco to the guerillas' encampment. He testified that about two weeks after his capture, the family, which apparently included both parents and two sisters, escaped the encampment. In the process, Reynoso became separated from his family and managed to walk for three days to Chiapas, Mexico, where he stayed and worked for three years. Thereafter, Reynoso moved to Mexico City, where he lived for another three years, working in a restaurant. At the age of 16, Reynoso left Mexico City and crossed into the United States.

Reynoso's parents, with whom he is in regular contact, now live in Cumil, Guatemala, a town approximately five hours from Quilco on foot. None of them knows the whereabouts of his younger sisters. Although formal resistance to the Guatemalan government has ended, Reynoso stated that he believes former guerillas are still active in Guatemala. He testified that, if he returned, he feared persecution by these guerillas for failing to join their resistance in 1987. The basis for this assertion was a list that he claimed the guerillas have kept which contains names of people whom they plan to target for retribution. He believed that both he and his father were on this list. He also stated that he had acquaintances who, after returning to Guatemala in 1997, were killed by former guerillas seeking revenge. In addition, Reynoso testified that his parents' crops had been destroyed, ostensibly by former guerillas.

In arriving at an adverse credibility finding, the IJ pointed to several deficiencies in Reynoso's testimony. Specifically, the IJ found questionable Reynoso's testimony relating to (1) a "list" that the guerillas created in 1987; (2) his belief that guerillas are still active in Guatemala; (3) the guerillas' capture of the entire family, including his two younger sisters; and (4) his escape at the age of 10 and subsequent journey through Mexico and into the United States.

The IJ found this testimony incredible for several reasons. First, he doubted that Reynoso could have escaped the guerilla camp by himself on foot and then supported himself in Mexico from ages ten to sixteen. Second, he did not find that Reynoso's account provided a plausible basis for fearing a threat by former guerillas. Third, he took judicial notice of changed country conditions in Guatemala, finding that the guerillas had disbanded. Therefore, the IJ held that Reynoso had failed to show either past persecution or a well-founded fear of future persecution, as is required to establish statutory eligibility for asylum. Moreover, the IJ found that any harm Reynoso suffered was not "on account of" any of the five grounds enumerated by the INA (i.e., race, religion, nationality, membership in a particular social group, or political opinion). Instead, the guerillas mistreated his family in an attempt to recruit the family to join their rebellion.

The IJ analyzed each of these areas of Reynoso's testimony and supplied specific reasons for his adverse credibility findings. In particular, the IJ found that Reynoso's testimony was exaggerated, embellished, and not particularly believable. The IJ accordingly concluded that Reynoso had not met his burden to establish a well-founded fear of persecution if returned to Guatemala.

We find no abuse of discretion in any of the IJ's credibility determinations. We accordingly conclude that substantial evidence supports the IJ's determination that Reynoso failed to support his asylum, withholding of deportation and CAT claims with credible evidence.

III.

A.

We now turn to the question of whether we can reinstate Reynoso's voluntary departure date. Under certain circumstances, the Attorney General will grant an alien voluntary departure as an alternative to deportation. This allows the alien to depart the United States at his or her own expense without being subject to the penalties and restrictions that deportation imposes. An alien who is deported may not reenter the United States for ten years unless the Attorney General permits it. However, an alien who departs voluntarily is not bound by this restriction and may reenter the United States once he or she has obtained proper documentation. See Ramsay v. INS, 14 F.3d 206, 211 n. 7 (4th Cir.1994). As an alternative to granting his petition for asylum, Reynoso requests that we extend the thirty-day voluntary departure order...