2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-1-2013

Marvin Fuentes-Miranda v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 12-4248

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 12-4248

___________

MARVIN IVAN FUENTES-MIRANDA,

 Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

 Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A094-359-187)

Immigration Judge: Honorable Andrew R. Arthur

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

July 3, 2013

Before: SCIRICA, JORDAN and GREENAWAY, JR., Circuit Judges

(Opinion filed: August 1, 2013 )

___________

OPINION

___________

PER CURIAM

Petitioner, Marvin Ivan Fuentes-Miranda, seeks review of a final order of removal. 

For the reasons discussed below, we will dismiss in part and deny in part the petition for 

review.

I.
2

 Fuentes-Miranda is a 43 year-old citizen of Honduras who entered the United 

States unlawfully in 1990. In 2011, the government commenced removal proceedings 

against him under 8 U.S.C. § 1182(a)(6)(A)(i), as an alien present without being admitted 

or paroled, and § 1182(a)(2)(A)(i)(I), as an alien who committed a crime involving moral 

turpitude. Fuentes-Miranda sought asylum, withholding of removal, and protection under 

the Convention Against Torture (CAT), claiming that, in 1988, he and his family, who 

were members of the National Party, were attacked by “death squadrons” affiliated with 

the governing Liberal Party. Fuentes-Miranda stated that, as a result of injuries sustained 

in the attack, he lost sight in his left eye and hearing in his left ear. 

The Immigration Judge (IJ) denied Fuentes-Miranda’s applications for relief, and 

the Board of Immigration Appeals (BIA) dismissed his appeal. First, the BIA determined

that Fuentes-Miranda’s asylum application was untimely because he filed it more than 20 

years after entering the country, and neither his physical disabilities nor his ignorance of 

this country’s immigration laws constituted an extraordinary circumstance warranting an 

exception to the filing deadline. See 8 U.S.C. § 1158(a)(2)(D). With respect to FuentesMiranda’s application for withholding of removal, the BIA concluded that, even 

assuming that the events he described amounted to past persecution, the government had 

rebutted the presumption of future persecution by showing a fundamental change in 

circumstances in Honduras. Specifically, the BIA explained that 24 years had passed 

since Fuentes-Miranda had been attacked, and that the party he supported, the National 

Party, has since taken control of the government. Furthermore, the BIA noted, the State 
3

Department reported that political violence has decreased since the 1980s, and that there 

have not been any recent accounts of politically motivated disappearances or other 

persecution.1 In addition, the BIA determined that Fuentes-Miranda had failed to show 

that it is more likely than not that he would be tortured by any of the groups he fears if 

forced to return to Honduras. Lastly, the BIA considered Fuentes-Miranda’s claim that 

his due process rights were violated when the interpreter at the removal hearing provided 

inaccurate translations, but concluded that there was no record support for his contention. 

This petition for review followed. 

II.

We may not review the BIA’s determination that Fuentes-Miranda’s asylum 

application was untimely.2 See 8 U.S.C. § 1158(a)(3) (stating that “[n]o court shall have 

jurisdiction to review any determination of the Attorney General” relating to the 

timeliness of an asylum application); Sukwanputra v. Gonzales, 434 F.3d 627, 632-33 (3d 

Cir. 2006). We retain jurisdiction, however, to review the denial of withholding of 

 

1

In support of his applications, Fuentes-Miranda also claimed that he may have suffered 

persecution in the past because of his membership in the farm workers’ union (MUCA), 

and that he feared future persecution due to general violence by gang members, drug 

traffickers, and other criminals in Honduras. The BIA determined that he had failed to 

establish eligibility for withholding of removal on any of these bases. Fuentes-Miranda 

does not challenge this ruling in his informal brief. 

2

Fuentes-Miranda also sought humanitarian asylum under 8 C.F.R. § 1208.13(b)(1)(iii). 

However, because this form of relief is available only to persons eligible for asylum, and 

Fuentes-Miranda’s asylum application was pretermitted because it was not filed in a 

timely manner, he was not eligible for this form of relief. See 8 C.F.R. 

§ 1208.13(b)(1)(iii), (c)(1).
4

removal and relief under the CAT. See Tarrawally v. Ashcroft, 338 F.3d 180, 185-86 (3d 

Cir. 2003); 8 U.S.C. § 1252(a)(2)(D). We review these decisions for substantial 

evidence, considering whether they are “supported by reasonable, substantial, and 

probative evidence on the record considered as a whole.” Lin-Zheng v. Att’y Gen., 557 

F.3d 147, 155 (3d Cir. 2009) (en banc) (internal citation omitted). 

We see no error in the BIA’s determination that Fuentes-Miranda failed to meet 

his burden of proof to establish eligibility for withholding of removal or relief under the 

CAT. See Toure v. Att’y Gen., 443 F.3d 310, 317 (3d Cir. 2006) (explaining that

withholding of removal may be granted upon a showing that it is more likely than not that 

the applicant will be subjected to persecution if he is deported); 8 C.F.R. § 1208.16(c)(2) 

(providing that, to qualify for relief under the CAT, an applicant must establish “that it is 

more likely than not that he or she would be tortured if removed to the proposed country 

of removal”). The State Department’s recent reports on Honduras do not indicate that 

death squads affiliated with the Liberal Party—which has since lost power—are 

committing acts of political violence against current or former members of the National 

Party. While the State Department and Human Rights Watch report that security forces 

have not been held accountable for abuses committed after the 2009 coup, and that 

Honduras suffers from general violence and human rights violations, nothing in the 

record suggests that Fuentes-Miranda would be targeted on account of his affiliation—24 

years ago—with the National Party. See Al-Fara v. Gonzales, 404 F.3d 733, 740 (3d Cir. 
5

2005) (explaining that generally harsh conditions shared by many others do not amount 

to persecution). 

We also agree with the BIA that nothing in the record supports Fuentes-Miranda’s

contention that the interpreter at the removal hearing was incompetent and grew tired of 

providing Fuentes-Miranda with translations during the proceedings. As the BIA noted, 

there were only a few instances where the interpreter had to repeat questions posed to 

Fuentes-Miranda. Furthermore, the IJ instructed the interpreter on numerous occasions to 

speak loudly so that Fuentes-Miranda, who has difficulty hearing, could clearly discern

the questions. Finally, Fuentes-Miranda does not point to any specific examples in the 

hearing transcript of his failure to understand a particular question, nor does he explain 

how his testimony would have been different had a more capable interpreter been present. 

Under these circumstances, Fuentes-Miranda has not shown a due process violation.3 See

Khan v. Att’y Gen., 448 F.3d 226, 236 (3d Cir. 2006) (requiring an alien to show 

“substantial prejudice” in order to establish a procedural due process violation).

III.

For the foregoing reasons, we will dismiss the petition for review in part and deny 

it in part. 

 

3

To the extent that Fuentes-Miranda claims that the IJ and BIA failed to consider all of 

his testimony and documentary evidence, we are satisfied that the agency conducted a 

thorough review of the evidence. See Sevoian v. Ashcroft, 290 F.3d 166, 178 (3d Cir. 

2002) (“The Board is not required to write an exegesis on every contention, but only to 

show that it has reviewed the record and grasped the movant’s claims.”) (quotation 

marks and citation omitted).