Joaquin-Porras v. Gonzales

• Decision Date: 18 January 2006
• Docket Number: Docket No. 03-4202.
• Citation: 435 F.3d 172
• Parties: Jose JOAQUIN-PORRAS, Petitioner, v. Alberto GONZALES,<SMALL><SUP>*</SUP></SMALL> Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

435 F.3d 172

Jose JOAQUIN-PORRAS, Petitioner, v. Alberto GONZALES,^* Attorney General of the United States, Respondent.

Docket No. 03-4202.

United States Court of Appeals, Second Circuit.

Argued: May 12, 2005.

Final Submission: August 24, 2005.

Decided: January 18, 2006.

Eric W. Schultz, Robert D. Kolken, Sacks, Kolken & Schultz, Buffalo, NY, for Petitioner.

Allen F. Loucks, Assistant United States Attorney for the District of Maryland, Baltimore, MD (David Kelley, United States Attorney for the Southern District of New York, New York, NY, of counsel), for Respondent.

Before: FEINBERG, CARDAMONE, and SACK, Circuit Judges.

SACK, Circuit Judge.

The petitioner, Jose Joaquin-Porras, entered the United States from Costa Rica in 1991 under a temporary work visa. He resided in this country continuously, except for a few brief excursions to Costa Rica pursuant to "paroles" granted by the Immigration and Naturalization Service ("INS"), until the INS initiated removal proceedings against him in 2000. On January 18, 2001, less than a year after returning from his most recent parole to Costa Rica but almost ten years after the beginning of his otherwise continuous residency in the United States, Porras¹ applied for asylum under 8 U.S.C. § 1158, statutory withholding of removal under 8 U.S.C. § 1231, and withholding of removal under the United Nations Convention Against Torture ("CAT") and its implementing regulations, 8 C.F.R § 208.16(c).

The Immigration and Nationality Act ("INA") requires asylum applications to be filed "within 1 year after the date of the alien's arrival in the United States." INA § 208(a)(2)(B), 8 U.S.C. § 1158(a)(2)(B). According to 8 C.F.R. § 208.4(a)(2)(ii), "The 1-year period shall be calculated from the date of the alien's last arrival in the United States or April 1, 1997, whichever is later." Porras's asylum application was denied by an Immigration Judge ("IJ"), in a decision that was affirmed without opinion by the Board of Immigration Appeals ("BIA"), on the grounds that his asylum claim was untimely and that Porras had failed to meet his burden of proving his eligibility for asylum, withholding of removal, or CAT relief. We agree with the IJ that Porras's asylum application was untimely, and we agree that Porras has failed to prove that he is eligible for withholding of removal or CAT relief. We therefore deny his petition.

BACKGROUND

Petitioner Jose Joaquin-Porras is a 38-year-old from Costa Rica who entered the United States on an 18-month J-1 visa in 1991 to work at a bed-and-breakfast inn in Ithaca, New York. In 1993, Porras had his J-1 visa converted to an H-1B visa, allowing him to stay in the U.S. for three years to work at a catering company in Ithaca. In 1996, Porras renewed his visa for an additional three years, thereby extending his legal residency in the U.S. until 1999.

The Fraudulent Marriage

In 1998, Porras, who is gay, married Kimberly Costanza, a lesbian. She was a friend of his and an American citizen. Porras testified at his hearing before the IJ that the marriage was intended to provide companionship for both parties and to provide a safe home for Costanza, who was being sexually abused by her stepfather. Porras also testified, however, that the two did not cohabit after their marriage.

In June 1999, Porras and Costanza applied for Porras to receive permanent residency, advance parole, and employment authorization based on their marriage. Porras falsely stated on the application that he and Costanza lived together. Having been granted advance parole, Porras left the country to visit his family in Costa Rica in early January 2000, and returned several weeks later, on January 27, 2000. Approximately two weeks thereafter, Porras and Costanza were interviewed by an INS agent regarding Porras's permanent residency application. Porras either continued to maintain, or did not dissuade the interviewer from thinking, during the interview, that he and Costanza lived together. Immediately following the interview, however, Costanza withdrew the application. Soon thereafter, the INS initiated removal proceedings against Porras, permitting him to remain free during their pendency. At his hearing, Porras admitted to the IJ that he had lied when he told the INS that he lived with Costanza, and he promised, "I would never lie again. I pay a very high price after that. I will never, ever lie again." Hr'g Tr., Oct. 15, 2001, at 37.

The Asylum Application

On January 18, 2001, Porras applied for asylum, withholding of removal, and relief under the CAT. His claim of persecution rests principally on two incidents, one of which, he testified to the IJ, occurred in 1984 when Porras was 17 years old, and one of which, he further testified, occurred in January 2000 while Porras was visiting Costa Rica during his most recent parole.

Porras testified that one night in 1984, he was walking home from night school at approximately 10 p.m. when he was stopped by a police officer and asked to produce identification. The police officer then forcibly placed Porras in the front seat of his police car, asked him if he "like[d] men," and raped him. Id. at 50. The police officer released Porras after warning him never to tell anyone about the incident. Porras did not report the assault to the police.

Porras also testified that on a night in 2000, when he was leaving a gay bar while he was visiting San José, a police officer stopped him and asked him for identification. After Porras produced his New York State driver's license, the police officer ordered Porras into the officer's police car, drove him to the police station, locked him in a cell, and began verbally assaulting him. Porras testified before the IJ, in English, that the police officer yelled various epithets at him, including that Costa Rica is being ruined because "[it's] full of faggots."² Id. at 68. Porras further testified that the police officer released him after taking all the money in his wallet — approximately forty dollars' worth of local currency — but left Porras with the equivalent of about three dollars to pay the taxicab fare for his return to where he was staying. Again, Porras did not report the incident to law enforcement authorities.

In addition to these two incidents, Porras testified before the IJ that prior to his first entry into the United States, he concealed his sexual orientation because he thought he would not be able to obtain the university job he sought had his sexual orientation been known. Porras explained that he feared ostracism and discrimination should he be returned to Costa Rica, and that he thought that his educational and employment opportunities in that country would be limited because of his sexual orientation. To substantiate these concerns, Porras pointed to several newspaper reports regarding harassment, attacks, and governmental discrimination against homosexuals in that country. Although Porras's asylum application was submitted in January 2001, the most recent article he provided was from December 1998.

Porras also provided a copy of the State Department's country conditions report on Costa Rica from the year 2000. The report notes that the country is a "longstanding, stable, constitutional democracy" that "generally respect[s] the human rights of its citizens." U.S. Dep't of State, Country Report on Human Rights Practices, 2000, Costa Rica (Feb.2001) available at http://www.state. gov/g/drl/rls/hrrpt/2000/wha/746.htm. The report notes, however, that "[t]here were some instances of physical abuse by police and prison guards, and reports of police abuse of authority or misconduct." Id. The report suggests that privacy rights are generally respected. Id.

Porras also provided a significant amount of information concerning his character and community standing, including multiple character reference letters, copies of his United States income tax returns dating back to 1993, and the deed to his home. The submissions included a letter from the President Emeritus of Cornell University, where Porras was last employed, who described Porras as "an individual of fine and upright character" and "an exemplary member of the Ithaca community." Letter from Frank H.T. Rhodes, President Emeritus, Cornell University, to the Honorable Michael Rocco, Immigration Judge (May 8, 2001). Another university administrator, who had frequent professional contact with Porras, stated, "I truly believe that no one could be more deserving of staying in the United States." Letter from Mary Ahl, Administrative Manager, Society for the Humanities, Cornell University (Apr. 15, 2001). The references as a whole paint a portrait of a hardworking, well-liked, and community-minded person who has excelled professionally.

The IJ's Decision

In reviewing Porras's asylum application, the IJ concluded as an initial matter that the application was untimely under section 208(a)(2)(B) of the INA, 8 U.S.C. § 1158(a)(2)(B), which provides that the right to apply for asylum "shall not apply to an alien unless the alien demonstrates by clear and convincing evidence that the application has been filed within 1 year after the date of the alien's arrival in the United States," id., and the related regulation, which states that "[t]he 1-year period shall be calculated from the date of the alien's last arrival in the United States or April 1, 1997, whichever is later," 8 C.F.R. § 208.4(a)(2)(ii) (emphasis added).

The IJ acknowledged that Porras "last arrived in the United States on January 27, 2000" — within one year of his January 18, 2001 asylum application — but concluded that Porras "was, in actuality, present in the United States since his first arrival on September 13, 1991 where he remained (with the exception of brief absences of no more than one to three weeks for vacations) under various non-immigrant categories and finally, as a parolee." Oral Decision of the Immigration Judge, dated Oct. 19, 2001 ("Oral Decision"), Tr. at...