2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-10-2012

Erica Galvaz-Dellacruz v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-1625

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-1625

___________

ERICA GALVAZ-DELLACRUZ,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A094-241-252)

Immigration Judge: Honorable Mirlande Tadal

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

May 9, 2012

Before: FISHER, WEIS and BARRY, Circuit Judges

(Opinion filed: May 10, 2012)

___________

OPINION

___________

PER CURIAM.

Erica Galvaz-Dellacruz petitions for review of the Board of Immigration Appeals’ 

(“BIA”) order affirming the decision of the Immigration Judge (“IJ”) denying 

withholding of removal and relief under the Convention Against Torture (“CAT”). For 
2

the following reasons, we will deny the petition for review.

Galvaz-Dellacruz, a native and citizen of Peru, last entered the United States in 

September 1997. She was placed in removal proceedings in April 2008, with charges 

under INA § 212(a)(6), 8 U.S.C. § 1182(a)(6), as an alien present in the United States 

without being admitted. As relief from removal, she applied for withholding of removal 

and relief under CAT, and, in the alternative, voluntary departure.1

At a hearing before an IJ, Galvaz-Dellacruz testified that, during the years 1985 

through 1990, there were a number of attacks in Peru by the terrorist group, the

Movimiento Revolucionario Tupac Amaru (“MRTA”). During one of the attacks in 

1989, the MRTA killed the governor of Tapo, a town in Peru. Galvaz-Dellacruz testified 

that the MRTA was after her father because he served as the lieutenant governor of Tapo 

during that period. She also stated that due to their fear of the MRTA, in 1990, her 

parents fled Peru and gave her up for adoption to her grandparents. Galvaz-Dellacruz 

claimed that her grandparents later sent her to the United States due to the fear of 

terrorists. She stated she was afraid to return to Peru because the MRTA is still active 

and she believes that she would be targeted due to her father’s former position as 

lieutenant governor.

Although the IJ found that Galvaz-Dellacruz’s testimony was credible, the IJ 

denied Galvaz-Dellacruz’s requests for withholding of removal and CAT relief. The IJ 

 1 Galvaz-Dellacruz initially applied for cancellation of removal, but was not 

statutorily eligible pursuant to INA § 240A(b), 8 U.S.C. § 1229b(b).
3

granted voluntary departure upon posting bond. Galvaz-Dellacruz appealed to the BIA, 

which dismissed the appeal for essentially the reasons set forth in the IJ’s decision. The 

BIA concluded that Galvaz-Dellacruz failed to demonstrate past persecution because she 

was never physically harmed in Peru. She failed to demonstrate a clear probability of 

persecution because the Country Report did not support a finding that the MRTA is an 

ongoing, active terrorist group in Peru. For the same reasons, the BIA also found GalvazDellacruz failed to establish that it is more likely than not that she will be tortured if she 

returns to Peru. Because Galvaz-Dellacruz failed to post bond, the BIA did not reinstate 

her voluntary departure period and ordered her removed from the United States to Peru. 

Galvaz-Dellacruz then filed a petition for review. 

We have jurisdiction under INA § 242(a), 8 U.S.C. § 1252(a)(1). Where the BIA 

issues a decision on the merits, we review only the BIA’s decision. However, we will 

look to the IJ’s analysis to the extent that the BIA deferred to or adopted it. See

Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir. 2006). We “will uphold the findings 

of the BIA to the extent that they are supported by reasonable, substantial[,] and 

probative evidence on the record considered as a whole, and will reverse those findings 

only if there is evidence so compelling that no reasonable factfinder could conclude as 

the BIA did.” Kayembe v. Ashcroft, 334 F.3d 231, 234 (3d Cir. 2003). Our review of 

legal conclusions is de novo, subject to principles of deference. Kaplun v. Att’y Gen.

To obtain withholding of removal, Galvaz-Dellacruz must demonstrate that it is 

, 

602 F.3d 260, 265 (3d Cir. 2010).
4

more likely than not that she will face persecution if she is removed to Peru based on her 

race, religion, nationality, membership in a particular social group, or political opinion. 

See INA § 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A); Miah v. Ashcroft, 346 F.3d 434, 438-

39 (3d Cir. 2003). To make this showing, Galvaz-Dellacruz must demonstrate either past 

persecution or a likelihood of future persecution. See 8 C.F.R. § 1208.16(b). A futurepersecution claim requires the applicant to demonstrate a subjective fear of persecution 

and that the fear is objectively reasonable. See Lie v. Ashcroft, 396 F.3d 530, 536 (3d 

Cir. 2005). The objective prong requires an applicant to demonstrate that (1) she would 

be “individually singled out for . . . persecution” or (2) “there is a pattern or practice” of 

persecuting similarly situated individuals. Id. Persecution does not include all acts that 

our society regards as unfair, unjust, unlawful, or unconstitutional. Rather, persecution is 

defined as “extreme behavior, including ‘threats to life, confinement, torture, and 

economic restrictions so severe that they constitute a threat to life or freedom.’” Ahmed 

v. Ashcroft, 341 F.3d 214, 217 (3d Cir. 2003) (quoting Fatin v. Immigration & 

Naturalization Servs., 12 F.3d 1233, 1240 (3d Cir. 1993)). To obtain CAT relief, GalvazDellacruz must show that it is more likely than not that she will be tortured if removed to 

Peru. See 8 C.F.R. § 1208.16(c)(2). For an act to constitute torture under the CAT, it 

must cause severe physical or mental pain or suffering. Auguste v. Ridge

Galvaz-Dellacruz asserts that the BIA erred because there was sufficient evidence 

to conclude that it is more likely than not that she will face persecution if removed to 

, 395 F.3d 123, 

151 (3d Cir. 2005). 
5

Peru based on her testimony and corroborating documents.2 We disagree. A reasonable 

factfinder would not be compelled to find that Galvaz-Dellacruz had suffered past 

persecution or is likely to suffer persecution if removed to Peru. While she correctly 

notes that physical harm is not a prerequisite to a finding of persecution, see Li v. Att’y 

Gen., 400 F.3d 157, 166 (3d Cir. 2005), Galvaz-Dellacruz has not demonstrated that the 

MRTA’s behavior constituted a threat to her life or freedom, see Ahmed, 341 F.3d at 

217. Her testimony and corroborating documents focus on events from 1985 through 

1990, and the Country Report does not support a finding that the MRTA is an ongoing, 

active terrorist group in Peru. See Ambartsoumian v. Ashcroft, 388 F.3d 85, 89 (3d Cir. 

2004) (citing Kayembe, 334 F.3d at 235, for the proposition that State Department 

country reports are the “most appropriate” and “perhaps best resource on country 

conditions”). Moreover, her grandmother indicated in a letter that Galvaz-Dellacruz was 

sent to the United States for economic reasons, not for fear of persecution. See

The BIA's rejection of Galvaz-Dellacruz's CAT claim also finds substantial 

support. Galvaz-Dellacruz presents her testimony and corroborating documents that 

R. 149-

50. Thus, Galvaz-Dellacruz’s fear of future persecution is not objectively reasonable. 

We, therefore, conclude that substantial evidence supports the BIA’s conclusion that 

Galvaz-Dellacruz has failed to show that it is more likely than not that she will face 

persecution if she is removed to Peru.

 2 Galvaz-Dellacruz notes that her corroborating documents include a letter from 

her grandmother that stated that in 1989 her grandmother cared for her because her father 

had been threatened by terrorists. 
6

discuss her father’s governmental position and the MRTA’s activities from 1985 through 

1990. For the reasons stated above, this evidence also fails to demonstrate that it is more 

likely that not that she would be tortured if removed to Peru. 

Accordingly, we will deny the petition for review.