Zara v. Ashcroft

• Decision Date: 07 September 2004
• Docket Number: No. 02-74077.,02-74077.
• Parties: Erlinda Gerardo ZARA, Petitioner, v. John ASHCROFT, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

383 F.3d 927

Erlinda Gerardo ZARA, Petitioner, v. John ASHCROFT, Attorney General, Respondent.

No. 02-74077.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 15, 2004.

Filed September 7, 2004.

Rodel E. Rodis, San Francisco, CA, for the petitioner.

Rena I. Curtis, Department of Justice, Washington, DC, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A72-172-456.

Before DAVID R. THOMPSON, TASHIMA, and RAWLINSON, Circuit Judges.

THOMPSON, Senior Circuit Judge.

Petitioner Erlinda Gerardo Zara petitions for review of the Board of Immigration Appeals' ("BIA") affirmance without opinion of the immigration judge's ("IJ") denial of her applications for asylum, withholding of removal, voluntary departure and relief under the Convention Against Torture ("CAT"). In her appeal to the BIA, the only issue Zara raised was her challenge to the IJ's finding that the Aquino Party was no longer in power when she left the Philippines and the impact that alleged error had on her other applications for relief. Zara did not present to the BIA the critical issue she now presents to us concerning the IJ's adverse credibility finding, nor did she challenge the IJ's determination that she presented insufficient evidence of torture as defined by the CAT, nor did she contend the IJ abused his discretion in denying her request for voluntary departure.

Because Zara did not exhaust her administrative remedies, we do not have jurisdiction to consider the claims she presents in her petition for review. Accordingly, that petition is dismissed.

BACKGROUND

Zara, a native and citizen of the Philippines, entered the United States on July 12, 1992, pursuant to a non-immigrant visitor's visa. According to the terms of the visa, Zara was authorized to remain in this country only until January 12, 1993. She overstayed that authorization.

On July 13, 1994, Zara filed an application for asylum. In her application, she stated that she was requesting asylum because she feared that she would be killed by members of the Aquino Party if she returned to the Philippines. She explained that she was an active member of the Marcos party and that, as a result of her political activities, she had been beaten and had received death threats. Specifically, Zara alleged that on two occasions, after attending meetings in support of Marcos, she was confronted by members of the Aquino Party who threatened to kill her, beat her up, and attempted to rape her. She also alleged that she was twice detained for three hours by "hooligans of the opposition party" who pointed guns at her and threatened her. She asserted that she had to leave her job and had difficulty attending church due to the threats to her life.

Upon interviewing Zara, the Immigration and Naturalization Service ("INS") determined that her claims of past persecution and fear of future persecution were not credible and referred her application to an IJ.

After a hearing on the merits, the IJ denied Zara's applications for asylum under Immigration and Nationality Act ("INA") § 208(a)(1), 8 U.S.C. § 1158(a)(1), and withholding of removal under INA § 241(b)(3), 8 U.S.C. § 1231(b)(3). With respect to the asylum claim, the IJ found Zara was not a credible witness. That determination was based on Zara's vague and nonresponsive testimony, material inconsistencies between her application materials and her testimony at the hearing, and inconsistencies within that testimony. The IJ also found that Zara failed to establish her identity. The IJ also determined that even if Zara were found to be credible, she had failed to establish either past persecution or a well-founded fear of future persecution. The IJ explained that the alleged acts of persecution (slapping and detention) did not rise to the level of persecution within the meaning of the statute. The IJ also noted that Zara departed the Philippines after the Aquino regime had ceded control of the Philippines and available evidence indicated that Marcos supporters are no longer subject to abuse and threats. Because Zara could not satisfy the lower standard of proof required for asylum, the IJ denied her claim for withholding of removal under INA § 241(b)(3).

The IJ also determined that there was no competent and credible evidence that Zara had been tortured within the meaning of the CAT. The IJ denied Zara's claim for voluntary departure in the exercise of his discretion, and ordered that she be removed to the Philippines.

Zara appealed the IJ's decision to the BIA. In her notice of appeal, Zara provided the following reason for the appeal:

The Immigration Judge erred in finding that the `Aquino Party' rule ended in May 1992 when, in fact, General Fidel V. Ramos, was elected president in May 1992 as a member of the Aquino Party so the Aquino Party rule continued on at the time respondent left the Philippines contrary to the finding that the Aquino Party was no longer in power when respondent left the Philippines.

In her brief on appeal to the BIA, Zara reiterated that the immigration judge erred in finding that the Aquino Party was no longer in power at the time she left the Philippines. She explained:

Consequently, as a result of the IJ's error in finding that the Aquino regime was out of the [sic] power at that time of Respondent's departure in July of 1992, the IJ erroneously denied Respondent's application for asylum after finding that Respondent did not sufficiently establish her claims of past and future persecution from the Aquino party or because she was a supporter of the Marcos regime. Furthermore, the IJ also erroneously denied Respondent's other applications for relief as a result of the IJ's error.

On November 1, 2002, the BIA affirmed, without opinion, the decision of the IJ pursuant to its streamlining procedures. See 8 C.F.R. § 3.1(e)(4). Thus, the IJ's decision became the final agency decision. Id.

DISCUSSION

Zara raises a number of arguments in support of her petition for review. Specifically, she challenges the IJ's adverse credibility determination and the finding that she failed to establish her identify. In addition, Zara contends there was sufficient evidence supporting her claim of past persecution, which established a presumption of future persecution that the government failed to rebut, and she argues generally that she established all of her claims for relief.

The issues Zara presents to this court in her petition for review differ from the issues she presented in her appeal to the BIA. In her appeal to the BIA, the only issue Zara raised pertained to the IJ's alleged factual error in finding that the Aquino Party was no longer in power at the time she departed the Philippines and the impact that factual finding had on her application for asylum and other applications for relief. Zara did not raise in her appeal to the BIA any of the other issues she now includes in her petition for review.

We have held that "[f]ailure to raise an issue in an appeal to the BIA constitutes a failure to exhaust remedies with respect to that question and deprives this court of jurisdiction to hear the matter." Vargas v. United States Dept. of Imm. & Nat., 831 F.2d 906, 907-908 (9th Cir.1987). A petitioner cannot satisfy the exhaustion requirement by making a general challenge to the IJ's decision, but, rather, must specify which issues form the basis of the appeal. See, e.g., Cortez-Acosta v. INS, 234 F.3d 476, 480 (9th Cir.2000) (explaining that we lacked jurisdiction to address petitioner's arguments regarding domicile and due process because he had failed to raise the issues on appeal to the BIA); Mabugat v. INS, 937 F.2d 426, 430 (9th Cir.1991) (petitioner's failure to raise certain arguments before the BIA in support of his claim for voluntary departure stripped this court of jurisdiction to address these issues).

Zara contends that the issues raised in her petition for review to this court should be deemed exhausted because the INS "fully briefed" these issues before the BIA. The record does not support this contention. The INS did not address any of the issues Zara now presents in her petition for review. Rather, in the brief the INS filed with the BIA in response to Zara's appeal, it asserted generally:

The Immigration and Naturalization Service hereby adopts the well-reasoned opinion of the Immigration Judge.... The IJ's decision to deny asylum, withholding of removal, relief under the Convention Against Torture, and voluntary departure is amply supported by the record.

This broad assertion did not provide the BIA with notice of the issues Zara now presents to us.

This circuit has not addressed the question whether the exhaustion requirement applies to "streamlined" decisions — i.e., when a single member of the BIA affirms the IJ's decision without opinion pursuant to 8 C.F.R. § 3.1(e)(4). When the BIA issues a "streamlined" decision, the decision of the IJ becomes the final agency determination. 8 C.F.R. § 3.1(e)(4)(B)(ii). Thus there is a question as to whether a petitioner seeking review of a "streamlined" decision by the BIA must establish that the issues raised in her petition for review to this court were presented in her appeal to the BIA.

We conclude that the exhaustion requirement applies to "streamlined" cases. The policy underlying the exhaustion requirement is to give an administrative agency the opportunity to resolve a controversy or correct its own errors before judicial intervention. Sagermark v. INS, 767 F.2d 645, 648 (9th Cir.1985).

When deciding whether to streamline a case, the BIA evaluates, among other things, whether the issues on appeal are squarely controlled by existing precedent or are so insubstantial that three-member review is not warranted. 8 C.F.R. § 3.1(a)(7)(ii). Accordingly, the decision whether to streamline is affected by what issues the petitioner chooses to appeal to the BIA. The failure to include issues...