Robleto-Pastora v. Holder
| Decision Date | 27 May 2009 |
| Docket Number | No. 07-72091.,No. 07-71492.,07-71492.,07-72091. |
| Citation | 591 F.3d 1051 |
| Parties | Jorge Filadelfo ROBLETO-PASTORA, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent. Jorge Filadelfo Robleto-Pastora, Petitioner, v. Eric H. Holder Jr., Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Philip James Smith, Nelson Smith, LLP, Portland, OR, for the petitioner.
Gregory G. Katsas, Richard M. Evans, and Paul Fiorino, United States Department of Justice, Washington, DC, for the respondent.
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A027-447-476.
Before: ROBERT R. BEEZER, RONALD M. GOULD and CONSUELO M. CALLAHAN, Circuit Judges.
The opinion filed May 27, 2009, and published at 567 F.3d 437, is hereby amended. The amended opinion is filed concurrently with this order. With the amendments, the panel votes to deny the petition for rehearing. Judge Gould and Judge Callahan vote to deny the petition for rehearing en banc, and Judge Beezer so recommends.
The full court was advised of the suggestion for rehearing en banc and no judge requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35. The petition for rehearing and petition for rehearing en banc are hereby DENIED. The panel will entertain any additional petitions for rehearing or rehearing en banc that are filed in accordance with the applicable rules.
SO ORDERED.
Jorge Filadelfo Robleto-Pastora ("Robleto" or "petitioner"), born June 5, 1960, is a native and citizen of Nicaragua who entered the United States in 1984, was granted asylum, then adjusted status to that of lawful permanent resident (sometimes referred to herein as "LPR") in 1988. Following his 2005 forgery conviction in Oregon state court, petitioner was ordered removed as an aggravated felon pursuant to sections 237(a)(2)(A)(iii) and 101(a)(43)(R) of the Immigration and Nationality Act ("INA"). 8 U.S.C. §§ 1227(a)(2)(A)(iii), 1101(a)(43)(R). He petitions for review of the removal order, and the denial of his motion to reconsider that order. We deny both petitions.
Robleto and several of his family members left Nicaragua in the mid-1980s when the Sandinistas rose to power. In 1986, he and other family members were granted asylum pursuant to section 208 of the INA. See 8 U.S.C. § 1158. On October 2, 1988, he adjusted his status to lawful permanent resident pursuant to section 209(b). 8 U.S.C. § 1159(b).
In October 2004, Robleto was arrested and charged in Oregon state court with forgery-related offenses involving the distribution of false identifications. On July 29, 2005, he pled no contest to six counts of first degree forgery, and was sentenced to thirteen months in prison. He was released from prison after eleven months, and then charged with removability under section 237(a)(2)(A)(iii) of the INA. See 8 U.S.C. § 1227(a)(2)(A)(iii).
During the removal proceedings, Robleto sought relief from removal by (1) submitting a new application for asylum, (2) applying for withholding of removal under section 241(b)(3) of the INA and the Convention Against Torture ("CAT"), and (3) seeking to adjust his status under section 209(b) of the INA in connection with a waiver of inadmissibility under section 209(c). 8 U.S.C. § 1159(b)-(c).
On August 23, 2006, an Immigration Judge ("IJ") ruled that Robleto was ineligible to apply for adjustment of status under section 209(b) because that section was available only to asylees, and not lawful permanent residents such as Robleto.
Following several continuances, Robleto appeared before an IJ on December 5, 2006. He testified that his father and brother were employees in the Somoza government, and that he worked as a mechanic in the government's "General Customs" division. All three of them lost their jobs when the Sandinistas took control of the government. Robleto testified that he was unable to find gainful employment after he was fired, but admitted that he did not look for work in the private sector.
Other than losing his job, Robleto did not allege that he suffered actual persecution by the Sandinistas. Robleto's mother testified generally that the Sandinistas harassed the entire family due to their association with the Somoza government, but she failed to identify any specific persecution suffered by Robleto. Robleto's brother, Sergio, however, was detained by the Sandinistas for several hours in 1981 based on suspicions that he was involved with a school bombing. Another brother, Alvaro, was also detained by the Sandinistas in 1982, and was beaten and tortured. Robleto further testified that he is related to Eden Pastora, a famous anti-Sandinista leader.
Noting the 2006 reelection of Sandinista leader, Daniel Ortega, Robleto testified that he feared returning to Nicaragua. He alleged that the government would think he was an American spy, but cited no basis for this fear. He also failed to produce evidence that the current democratically-elected administration was persecuting former Somoza-government employees or members of his family. In fact, he testified that several aunts and uncles from both sides of his family, and at least one grandparent, still live in Nicaragua, and his mother testified that she and her husband had gone back to visit since leaving in the 1980s.
Citing, among other things, Robleto's aggravated felony, the IJ denied Robleto's application for asylum.1 The IJ also denied his application for withholding based on his failure to establish past persecution or a well-founded fear of persecution, and ordered him removed to Nicaragua.
On March 27, 2007, the BIA dismissed Robleto's appeal from the IJ's decision finding him removable as charged and denying his applications for relief. The BIA held that the IJ properly pretermitted Robleto's new asylum application based on his aggravated felony conviction, and concluded that Robleto failed to establish that he was entitled to withholding of removal. The BIA rejected Robleto's contentions that he retained the status of an asylee, and that such status entitled him to a presumption of a well-founded fear of persecution. Noting that his original asylum application contained no allegation of past persecution, the BIA held that a prior grant of asylum was insufficient to establish the presumption. The BIA noted that Robleto presented no evidence that he would be of any interest to the current administration, or that it otherwise persecuted former Somoza-government employees or relatives of former government employees. Accordingly, the BIA concluded that Robleto failed to establish a likelihood of future persecution in Nicaragua.
The BIA also concluded that Robleto's status was that of a lawful permanent resident, not an asylee, and that he retained that status until a final order of removal. Thus, it concluded that Robleto's request to apply for adjustment of status under section 209(b) in connection with a waiver of inadmissibility under section 209(c) "made no sense." Finally, the BIA concluded that Robleto's due process rights were not violated when the IJ denied his request for a continuance to obtain his immigration records because he failed to establish prejudice resulting from the denial.
On April 20, 2007, Robleto filed a motion for reconsideration with respect to the BIA's determination that he was ineligible to apply for adjustment of status under section 209(b). On May 3, 2007, the BIA denied Robleto's motion to reconsider. Robleto filed timely petitions for review of that order and the March 27, 2007, order dismissing his appeal.2
We have jurisdiction under 8 U.S.C. § 1252(a)(2)(D) to review final orders of removal involving "constitutional claims or questions of law," such as the ones presented in Robleto's petitions. See Morales-Alegria v. Gonzales, 449 F.3d 1051, 1053 (9th Cir.2006). Where the BIA conducts its own review of the evidence and law, "our review is limited to the BIA's decision, except to the extent the IJ's opinion is expressly adopted." Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir.2006) (citation and internal quotation marks omitted).
We review the BIA's determination of purely legal questions de novo. Simeonov v. Ashcroft, 371 F.3d 532, 535(9th Cir.2004). We may reverse the BIA's determination that an applicant is ineligible for asylum or withholding of removal "only if the evidence presented by [the applicant] is such that a reasonable fact-finder would be compelled to conclude that the requisite fear of persecution existed." Khourassany v. INS, 208 F.3d 1096, 1100 (9th Cir.2000); see also INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) () (emphasis in original).
We begin with the most straightforward of petitioner's claims for relief: his applications for asylum and withholding of removal under the INA and the CAT. "An application for asylum under 8 U.S.C. § 1158 is generally considered an application for withholding of removal under 8 U.S.C. § 1231(b)(3)." Zehatye v. Gonzales, 453 F.3d 1182, 1190 (9th Cir.2006) (citing 8 C.F.R. § 1208.3(b)). For asylum applications filed after April 1, 1997, an applicant is also considered for eligibility for withholding of removal under the CAT. See 8 C.F.R. § 208.13(c)(1).
"An alien is eligible for asylum relief if she can prove that she is a refugee which she can establish by proving either actual past persecution or a well-founded fear of future persecution" on account of race, religion, nationality, membership in a particular social group, or political opinion. Lolong v. Gonzales, 484 F.3d 1173, 1178 (9th...
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