NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 09-2222

___________

CARLOS TURCIOS-OCAMPO,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A96 047 136)

Immigration Judge: Honorable Eugene Pugliese

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

April 1, 2010

Before: AMBRO, CHAGARES and ALDISERT, Circuit Judges

(Opinion filed: May 26, 2010)

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OPINION

___________

PER CURIAM

Carlos Turcios-Ocampo petitions for review of a Board of Immigration Appeals

(“BIA”) decision dismissing his appeal of an Immigration Judge’s (“IJ”) decision denying
 Turcios-Ocampo was also charged with being subject to removal because he sought 1

or had sought to procure a visa, other documentation, or admission into the United States

by fraud or by willfully misrepresenting a material fact. Turcios-Ocampo did not concede

that he is removable on this basis.

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his applications for relief from removal. We will deny the petition for review.

Turcios-Ocampo is a native and citizen of Honduras who has lived in the United

States since 1988. In 2006, when Turcios-Ocampo was returning to the United States

from Mexico, immigration officers interviewed him due to concerns with his

documentation. Immigration proceedings were initiated and Turcios-Ocampo conceded

that he is subject to removal because he did not have a valid entry document at the time he

applied for admission to the United States. Turcios-Ocampo applied for asylum, 1

withholding of removal, and protection under the Convention Against Torture (“CAT”),

asserting a fear of persecution on account of his political opinion. Turcios-Ocampo also

prepared an application for cancellation of removal, which the IJ found untimely and

pretermitted. 

Turcios-Ocampo testified that in 1986, while attending college in Honduras, he

visited the United States several times to do translation work for United States officials. 

Turcios-Ocampo also joined a right-wing democratic group, the Frente Unido

Universitario Democratico (“FUUD”), which opposed the leftist group, Frente de

Reforma Universitaria (“FRU”). At this time, Turcios-Ocampo also worked at a hotel. 

He met a hotel guest named Mr. Lamb, who Turcios-Ocampo believed was promoting
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democracy in the region. Lamb hired Turcios-Ocampo to translate communications. 

Turcios-Ocampo testified that he is afraid to return to Honduras now because of

the rise of powerful drug lords and gang members, who were FRU members and maintain

their political views. Turcios-Ocampo explained that in 1996 he returned to his home

town and members of a family named Nunez, who opposed the FUUD, threatened him

and told him to return to the United States. Turcios-Ocampo stated that Nunez family

members threatened the lives of his family members and stoned his uncle’s house in

Honduras. Turcios-Ocampo left the country immediately after receiving these threats.

Turcios-Ocampo believes that he was threatened because of his translation work in

the 1980's. He explained that he was a friend of Jorge Nunez, who told his relatives about

his work. Turcios-Ocampo stated that since 1996 the threats have continued against other

family members in Honduras and that the most recent threat was in 2005 when young

males tore down a fence his uncle was building on his property. He also stated that he

knew someone who worked for the United States government who was killed when he

returned to Honduras in 2005. Turcios-Ocampo does not believe that he would be safe in

any part of Honduras because the drug dealers have connections all over the country. On

cross-examination, Turcios-Ocampo conceded that, despite the threats made against him

in 1996, he had returned to Honduras approximately ten times, although he did not return

to his home town. Turcios-Ocampo also conceded that he did not apply for asylum after

the 1996 or 2005 threats.
 The IJ also denied Turcios-Ocampo’s CAT application. This ruling is not at issue. 2

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The IJ concluded that Turcios-Ocampo had not met his burden of proof for asylum

or withholding of removal. The IJ explained that Turcios-Ocampo had not submitted any

evidence corroborating his testimony. The IJ also stated that any verbal threats did not

rise to the level of persecution and that his numerous visits to Honduras belied his claim

that the entire country is dangerous to him. The IJ also questioned whether the Nunez

family would still want to harm Turcios-Ocampo. The IJ further found no proof that the

Nunez family is a group that the government is unable or unwilling to control.2

On appeal, the BIA held that the IJ did not err in finding that Turcios-Ocampo

failed to meet his burden of proof for asylum and withholding of removal. The BIA

agreed with the IJ that the threats and stoning of his uncle’s house did not rise to the level

of persecution. The BIA also noted that Turcios-Ocampo did not report any incidents of

harm to authorities and that the IJ had found that he did not show that the harm he

suffered was inflicted by forces that the government was unable or unwilling to control. 

The BIA also stated that Turcios-Ocampo did not show that he was unable to relocate to

another part of Honduras, noting that he had returned to Honduras without suffering any

harm. The BIA further held that the IJ did not err in noting Turcios-Ocampo’s failure to

submit corroborative evidence. 

Turcios-Ocampo also unsuccessfully challenged on appeal the IJ’s decision to

pretermit his application for cancellation for removal. Noting that the regulations allow a
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judge to set time limits for the filing of applications and related documents, the BIA

explained that the IJ told the parties at a hearing on January 25, 2007, that all applications

had to be filed ten days before the September 18, 2007, merits hearing, but TurciosOcampo presented his cancellation application and supporting documentation at the

merits hearing. The BIA also rejected Turcios-Ocampo’s related due process claim. This

petition for review followed.

Turcios-Ocampo argues that the BIA erred in affirming the IJ’s decision to

pretermit his cancellation of removal application. Turcios-Ocampo asserts that he

appeared at the January 25, 2007, hearing with his application, but the IJ did not stamp

the application into evidence because he had yet to pay the filing fee. Turcios-Ocampo

states that he paid the fee more than a month before his September 18, 2007, hearing date,

but the fee receipt was not received until after the hearing. Because he had not received

the receipt and was thus unable to get the necessary fingerprints, Turcios-Ocampo states

that on September 12, 2007, he sought an adjournment of his upcoming hearing, but the IJ

denied his motion. Turcios-Ocampo recognizes that the IJ also found that he had not

timely filed his supporting documents, but argues that the regulations do not state that a

failure to file documents or obtain a fee receipt will result in the waiver of an otherwise

timely application. Turcios-Ocampo contends that the IJ’s refusal to entertain his

application violated his right to due process.

The administrative record reflects that Turcios-Ocampo’s counsel stated he did not
 Under 8 C.F.R. § 1003.31(b), an application requiring the payment of a fee must be 3

accompanied by a fee receipt from the Department of Homeland Security or by an

application for a waiver of fees when filed in the Immigration Court.

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have his applications for relief ready at a hearing held on July 13, 2006. The IJ told

counsel to bring them to the next hearing or they would be considered abandoned. The IJ

stated that fingerprinting had to be done and the fee had to be paid. The next hearing 3

was held six months later on January 25, 2007. Counsel stated that he had a “bare-bones”

cancellation application, but he did not have the supporting documents or fee receipt. The

IJ advised Turcios-Ocampo that he would enforce the court’s ten-day rule, requiring that

all submissions be made at least ten days before the hearing. 

On the day of the merits hearing on September 18, 2007, Turcios-Ocampo’s

lawyer told the IJ that, as a result of an error in his office, he had just sent in the

application fee and fingerprinting fee. Counsel brought to the hearing the cancellation

application and supporting documents, which the IJ stated he would not consider because

he had not complied with the ten-day rule. The IJ asked counsel why he was providing

the application on the day of the hearing and counsel replied, “... I thought it was filed. I

thought everything was done.” A.R. at 81. 

Based on these facts, the BIA did not abuse its discretion in concluding that the IJ

did not err in pretermitting the cancellation application. See 8 C.F.R. § 1003.31(c)

(authorizing the Immigration Judge to set time limits for the filing of applications and

related documents and to deem waived the opportunity to file an application or document
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not filed within the time set); see also Dedji v. Mukasey, 525 F.3d 187, 191 (2d Cir.

2008) (reviewing application of 8 C.F.R. § 1003.31(c) for abuse of discretion); Khan v.

Att’y Gen., 448 F.3d 226, 233 (3d Cir. 2006) (denial of a continuance reviewed for abuse

of discretion is not disturbed unless it is “arbitrary, irrational, or contrary to law”).

Although Turcios-Ocampo states that he timely filed his cancellation application but not

his supporting documents, the record does not reflect that Turcios-Ocampo complied with

the court’s ten-day rule. We also agree with the Government that Turcios-Ocampo does

not have a cognizable due process claim because he has no constitutionally protected

interest in the discretionary relief of cancellation of removal. See, e.g, Pinos-Gonzalez v.

Mukasey, 519 F.3d 436, 441 (8th Cir. 2008) (holding same); see also United States v.

Torres, 383 F.3d 92, 104-05 (3d Cir. 2004) (holding aliens do not have a due process

interest in being considered for discretionary relief); Pinho v. I.N.S., 249 F.3d 183, 189

(3d Cir. 2001) (holding change in eligibility criteria for suspension of deportation, a

discretionary form of relief, did not implicate due process rights).

Turcios-Ocampo also challenges the denial of his applications for asylum and

withholding of removal. We review the agency’s findings under a substantial evidence

standard, which requires that we uphold the agency’s findings unless the evidence

compels a contrary conclusion. Shardar v. Ashcroft, 382 F.3d 318, 323 (3d Cir. 2004). 

Turcios-Ocampo contends that he established that the threats to himself and his family

constituted past persecution and that the Government did not rebut the presumption of
8

future persecution. The BIA, however, concluded that the verbal threats against TurciosOcampo and his family and the stoning of his uncle’s house did not rise to the level of

persecution. See Fatin v. I.N.S., 12 F.3d 1233, 1240 (3d Cir. 1993) (stating persecution

requires threats to life so severe that they constitute a threat to life or freedom). TurciosOcampo points to no evidence compelling a contrary conclusion. Because TurciosOcampo did not establish past persecution, a presumption of future persecution does not

apply. 

Turcios-Ocampo also challenges the IJ’s characterization of his claim as “stale”

because he testified to events that occurred more than twenty years ago. The BIA,

however, did not mention staleness as a reason for concluding that Turcios-Ocampo

failed to meet his burden of proof. Where, as here, the BIA offered its own analysis and

did not adopt all of the IJ’s findings, we review the BIA’s decision, not the decision of the

IJ. Voci v. Gonzales, 409 F.3d 607, 612 (3d Cir. 2005).

Finally, Turcios-Ocampo disputes that he can move to a part of Honduras outside

his home town. He contends that, although he has visited Honduras, these business trips

were only for one or two weeks at a time. He argues that Honduras is a small country and

that he would be discovered if he remained for a long time. Turcios-Ocampo has not

shown that the evidence compels the conclusion that he cannot move to another part of

Honduras. We agree with the Government that his numerous trips to Honduras run
 The BIA erred in citing 8 C.F.R. § 1208.16(b)(1)(B) to support the conclusion that 4

Turcios-Campos failed to show that he could not relocate to another part of Honduras. 

This subsection applies where an alien has established past persecution. The BIA may

have intended to cite § 1208.16(b)(2), which applies to future threats of persecution. In

any event, the BIA’s recognition of the fact that Turcios-Campos had returned to

Honduras supports its conclusion that he did not establish a well-founded fear of

persecution. 

counter to a claim of a well-founded fear of persecution.4

Accordingly, we will deny the petition for review.