2004 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit
2-3-2004 

# Jime ne z -M or a v

. Atty Ge n U SA P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al D ocke t N o . 03-1396

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w Di g it al Re posit or y

. It h as be e n a c c e pt e d for inclusion in 2004 D e c i sion s b y a n author i z e d a dmini s tr at or of V i l l a no va U nive r sit y S choo l of L a

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w . vi l l a no va . e du/thir dc ir c uit_2004/1032* The Honorable Dickins on R. Debevoise, Distri ct Judge of t he United States Distri ct Court f

or the Dis tri ct of New Jersey , si tting by des ignati on. NOT PRECEDE NTIAL UNITED STATES COURT OF APPEALS FO R T HE TH IRD CIR CU IT
No. 03-1396

ANA MONICA J IMENE Z- MORA, Petitioner

v. JOH N A SHC ROF T, as Attorney General of the United States; AND REA Q UAR ANT ILLO, as District Director for the I mmigrati on and Natural izat ion Servi ce
ON PETI TION FOR RE VIEW OF AN ORDER OF THE BOARD O F IMMIGRATION APPEALS

(No. A76 480 038) Argued on January

22, 2004 Be for e: A LIT O, C HE RT OF F, Circuit Judges , and DEBEVOISE, Distri ct Judge * (Opinion Fi led: Febr

uary 3, 2004) CHER YL L. BA RATT A (Argued) 21 Fairmont Avenue Somervill e, New Jersey 08876 Counsel for

Petitioner2 PETER D. KEI SLER DONALD E. KEENER CHRISTOPHER C. FULLER JOHN M. MCADAMS, JR. MICH ELLE E . GORD ON (Argued) Department of Justi ce, Civi l Divis ion Office of Immigration Lit igati on P.O. Box 878 Ben Franklin St ation Washington, D.C. 20044 Counsel for

Respondent

OPINI ON OF THE COURT
PER CU RIA M : I. Ana M onica Ji menez-Mora petitions for review of an orde r of the Boar d of Immigrat ion Appeals ( BIA) denyi ng her cla ims for as ylum, withhol ding of removal , rel ief under the U .N. Con vention A gainst Torture (CA T), and, in the alternative, vo luntary de pa rt ur e. For th e r ea so ns st at edbe lo w, we d en yth e p et itio n f orre vi ew. II. Because we write only for the parties, we need not disc uss the f actualbackground of th is ca se, b ut p roc eed dire ctly to th e su bsta nce of J ime nez -M ora ’s cla ims
. A. Jimenez-Mora fi rst argues that the regulation setting for th the BIA “affirmance1 Jimenez-Mora ar gues that one of the cl aims she as sert ed before t he BIA was one that ha d no t been raised befo re or co nside red b y the IJ: that th e IJ “v iolated her rig ht to due process when he prejudged her case based on he r conviction for bribery .” Appell ant Br. at 29. Even if i t were the case that Ji menez-Mora was indeed deni ed an “indivi dualiz ed deter

minati on” with res pect t o this clai m, she would st illneed to prove that s he was prejudi ced by t hat deni al befor e it would c onsti tute a violation of due pro ces s. See Aviola-Macias v. Ashcroft , 328 F.3d 108, 114-15 (3d Cir . 2003). JimenezMora suffered no prej udice her e because her “prejudgment ” clai m was meritl ess in any even t. The only evid ence Jimen ez-M ora cite s of u nfair p rejudg men t is a set of com men ts mad e by the IJ , prior to th e takin g of testimo ny, to the effect th at her c ase w as no t a par ticul arly stro ng o r symp athe tic on e in li ght of h er b ribe ry con victi on. See Appellant Br. at 30-32. Whether

or not advi sable, these r emarks, s tanding a lone, do not show that the IJwas prematurely bi ased agai nst Jimenez-Mora, let alone that Ji menez-Mora was (as she a lleges) “ denie d a fa ir hearin g on [her] claim s.” A ppella nt Br . at 35. A ccord ingly, it cannot be sa id that

Jimenez-Mora would have bee n unconsti tuti onally prejudi ced by t

he fai lure to re ceive an “indi vi dua li zed det ermin at io n” r egard in g he r p re ju dgme ntcl ai m. 3 wit hou t op inio n” ( AW O) pro ced ure s, see 8 C.F.R. 3.1(e)(4), vi olates the Due Process Clau se. Th e argu men t that this re gulatio n is un cons titutional o n its fac e w as esse ntially forec losed by our re cent en banc decisi on in Dia v. Ashcroft , 2003 U .S. App . LEX IS 25901 (3d Cir. Dec. 22, 2003) . In Dia , we held t hat “the due process right to an ‘individualized d etermination’ w as accord ed to [the p etitioner] at the IJ level, where th e IJ ‘reaso ned’ her d ecision , and th e BIA gave the res ult its imp rimatu r pursu ant to its regulations. ” Id. at *24. Jimenez-Mora re ceived j ust such an “indivi dualiz ed determination ” of her c laims by the IJ in the first instance, and under Dia , that is sufficient for the purposes of due process. 1 Jimenez-Mora al so contends that he r due proces s right s were viol ated becaus e the BIA failed to properly apply the AW O regulations in her case. This argument also fail s.4

Jimenez-Mora pre sents c onclusor y al legat ions that her c ase is not “squar ely control led by precedent ” and that

the questions she raises are not “ insubst antia l,” see Appellant Br. at 29-30, but

in fact , it

is far from clear

that J imenez-Mora’s c ase did not sati sfythe requ ireme nts of

8 C .F.R. 3 .1(e)(4 ), espec ially consid ering th e w ide latitud e acc orde d to the a gen cy in in terp retin g th at reg ulati on. See Bowles v. Seminol e Rock & Sand Co. , 325 U. S. 410 (1 945 ). Mor eo ve r, ev en as su mi ng t ha t t he ag en cy

erre d i n apply in g the AWO procedure in her case, such a mist ake would not neces sari ly be an error

of consti tuti onal magnitude. Of course, it is t rue that an agency is obligated to foll ow its own regulations, United States ex rel. Accardi v. Shaughnessy , 347 U .S. 260, 267 (1954), bu t “not every proceduralerror

that i s not har

mless vi olate s due proces s . . . .” Ortiz -S al as v. INS , 992 F.2d 105, 106 ( 7th Cir. 1993). We find no vi olati on of due process here. B. Jimenez-Mora next

argues t hat the IJ err ed in fi nding that she had not fi led her petition for as ylum in a ti mely manner under 8 U.S.C. § 1158(a)( 2)(B). The government responds by

contendi ng that t

his court lac ks juri sdict ion to r eview the cor rectne ss of the IJ’s tim eline ss d eterm inati on. See 8 U.S.C. § 1158(a )(3) ( “No court shal l have juri sdict ion to r eview anydetermi nation of the Attor

ney Generalunder [§ 1 158 (a)(2)(B )].”); see also Tarrawall y v. Ashcroft , 338 F.3d 180, 185 (3d Cir. 2003) (“[T]he l anguage of 8 U.S.C. § 1158( a)(3) clearly deprives us of jur isdi ction to review an IJ' s deter minati on that an asy lum peti tion was not file d within t

he one ye ar li mitat ions5

per iod . . . .”). Jimenez-Mora maint ains t hat she i s not cont esti ng the “det erminat ion” regarding the timeliness of her appl icat ion per se , but r ather i s making a col late ral at tack on the process the I J ap plied in m akin g th at de term inati on. Cf. McN ary v. Hait ian Refugee Center, Inc. , 498 U.S. 479 ( 1991) (provi sion bar ring appel late judici al revi ew of a “deter minati on respecting an appl icat ion” did not forecl ose “genera l coll atera l chal lenges to uncon stitutional practices and po licies used by the agen cy in processing ap plications”). But Jimenez- Mora’s clai m is plainly dist inguis hable fr om the sort present ed by t

he petitioners in Mc Nary . There, a group of immigr ants al leged t hat the generalprocedures used bythe INS to make det erminat ions of “SAW” status violated consti tuti onal gua ran tees of d ue p roc ess. Id. at 487 . The y did no t seek r eview of the denia ls of th eir applic ations for “S AW ” status , nor co uld the y have, u nder the jurisd ictiona l restriction s in for ce. Id. at 494; 8 U. S.C. § 1160(e) (1). Jimenez-Mora, by cont rast , seeks to have overtur ned the i ndividualdetermi nation made in her speci fic cas e that her appli cati on was time -ba rred
. Cf. id. at 492 (“‘ [A] determi nation’ describes a si ngle act rather than a group of d ecision s or a p ractice o r proc edur e em ployed in mak ing d ecision s.”) If w e w ere to accept J imenez-Mora’s c laim t hat her argument merely involves a col late ral at tack on the procedures used in making a determi nation, it i s hard t o imagine a ca se that would not2 For example, a determination that t he year time limit had not been met because the IJ believed c ertain witnesses re garding the applicant’s date o f arrival and n ot others could be appeal ed (under J imenez-Mora’s t heory ) byalle ging that

the rea soning or procedures employe d by t he IJ i n weighing the credibi lit y of t he testimony pr esented was unsound.

3 Jimen ez-M ora’s c onstitu tional a rgum ent – th at the IJ’s allege d failu re to co rrectly inter pret t he regulations amounted to a vi olati on of her due proce ss ri ghts – was rai sed for the first tim e in h er re ply brie f, an d so we con side r it w aive d. See Ne wto n v. M errill Lynch, Pierce, Fenner & Smith, I nc. , 259 F.3d 154, 191 n.35 (3d Cir . 2001). In any event, we doubt that

the IJ ’s interpret ation of the regul ation was unr easonable , le t alone unco nstitution al.

4 Jimenez-Mora al so argues t hat the IJ err ed when he decline d to grant asy lum and/or voluntary

departur e as a dis creti onary matter . There was no abuse of discr etion here. C ontrar y to Jimen ez-M ora’s a llegation s, the rec ord in dicate s that the IJ ade quate ly consider ed the evi dence prese nted to him in making his decisi on. Notabl y, the IJdid not find cre dible J imenez-Mora’s c ontenti on that he r bribery convict ion shoul d be discount ed bec aus e sh e ha d no t kn ow n at th e tim e tha t wh at sh e w as d oin g w as w ron g. A .R. a t 61
. Accordingly , his decisi on to deny reli ef despit e Jimenez- Mora’s “expres sions of r egret and remorse” was ha rdly ar bitrary or capricious.

6 fall outside the jurisdictional ba r of § 11 58(a)(3). 2 Jimenez-Mora complains that if jurisdi ction i s denied her e, then “ther e will be no review at all of [her] col late ral and c onsti tuti onal chal lenges t o the proce ss of deci ding the timel iness i ssue. ” Appellant Reply Br. at 6. 3 Yet this is not necessari ly t rue. As a generalmatter , such arguments may be rais ed in a habeas proceedi ng, unle ss a pertinent statu te ha s ad equ ately re pea led h abe as ju risdi ction
. See Li an g v. INS , 206 F.3d 308, 317 (3d C ir. 2000 ); see also IN S v . S t. C yr , 5 33 U .S . 2 89 ( 200 1) . In thi s f orum, how ev er , w e are without jurisdi ction to consider Ji menez-M ora’s challenge to t he timeliness determ ination , and h er petitio n fo r asylum mu st con sequ ently fail. 45 Note that the one-year fi ling r equirement applie s only

to asylum appli cants, and not to p etitio ns for w ithh old ing of r em ova l and relie f un der CA T. 7 C. Jimenez-Mora further cl aims that the IJerred in denying her withhol ding of
remo val. 5 To be eligible for wit hholding of r emoval, J imenez-Mora must show that if s he is for ced to re turn t o Colombia, t here is a “clear

probabil ity” that

she willbe persecut ed “on account of” a

specifi ed ground such as “membership i n a parti cular s ocialgroup.” See 8 U .S.C . § 12 31( b)(3 )(A ). “A clear pr obability means ‘more likely

than not. ’” Tarrawall y v. Ashcroft , 338 F.3 d 18 0, 18 6 (3 d C ir. 20 03)
. The crux of the I J’s deci sion see ms to be the f inding t hat Ji menez-Mora was not persecut ed “on account of” her membership in the al leged soci al group of “busines speople. ” As the IJ e xplaine d, “[T]hes e people who were afte r [Ji menez-Mora] and he r husban d had n o interest in . . . their social group . . . . These individu als were target ed because t

hey had money . People who have money are t he people t

hat y ou take the m one y from .” A .R. a t 66
. Jimenez-Mora pre sented no evi dence that she and her hus band had been thr eatened primari ly because they were bus inesspe ople. If Ji menez-Mora had been able to show (for example) that she actually had littl e money notwithstanding her status as a business person, perhaps t he findi ng that J imenez-Mora was targeted sol ely because of her
we alth co uld b e con tested. In deed , Jimen ez-M ora co ntend s that sh e and her h usba nd “d id6 Jimenez-Mora does not appear t o advance (and s o we do not address ) the alte rnati ve argument t

hat she was per secuted “ on account of” her membership i n the socialgroup of “the wealthy .” 8 not have money

at [the] ti me” the thr eats were made bec ause “sal es were low.” A. R. at 128 . H owe ve r, th e r ec or d de mon st rate s t ha t J im en ez -Mo race rt ai nl yown edcapi ta l ( “two
mu sic store s”) as w ell as en oug h m oney on hand to pay fo r the ins tallation o f a sec urity door an d a three-m onth vac ation to Disn ey World. A .R. at 126, 128 -29. M oreover, Jimenez-Mora her self t esti fied that the guerri lla organizat ion had at its disposalmeans for
asc ertai nin g th e fin anc ial re sou rces of its victi ms , see A.R. at 139, and so it is not unreasonable to conclude that the call ers were aware that Jimenez-Mo ra possessed these asset s. This evidence i s consis tent wit h what the IJ

found to be the realmotivat ion of the myst erious call ers: they target ed Jimenez- Mora “on account of” her wealth, and not her statu s as a bus ines spe rson . See In re V-T-S- , 21 I&N Dec. 792 (BIA 1997) (no asylum clai m where kidnaping was moti vated by petitioner’ s abil ity

to pay a ransom, r ather t

han
mem bersh ip in so cial gro up); Matte r o f S- V- , Int . Dec. 3430 ( BIA 2000) (“[I]n t he absence of eviden ce to sugg est other mo tivations, evidence th at the perpetrators w ere motivat ed by a vi ctim’s wealth wil l not s upport a finding of pers ecuti on within t he
mean ing of the A ct.”). 6 The IJ properly

reli ed on record e vidence t o support hi s impli cit f inding t hat Jimenez-Mora was a vi ctim of criminalextortion rat her than pe rsecut ion “on account of” a protec ted ground. The IJ cit ed the State Department Country Reports as indicating t

hat9

the k idn apin g an d ex tortio n of peo ple w ith w ealth “oc cur s w ith re gul arity in C olo mb ia.” A.R. at 65. Because “ordi nary crimina l act ivit

y does not ri se to t

he levelof persecution
nec essa ry to es tabli sh e ligib ility for asylum ,” Abdille v. Ashcroft , 242 F.3d 477, 494 (3d Cir. 2001) , Ji menez-Mora has fail ed to show that she is l ikely

to be pers ecuted “on account of” her

membership i n a protec ted soci al group. In fu rther su ppo rt of the denia l of w ithhold ing, the IJ fou nd th at it wa s pos sible (alt hough by no means as sured) t hat if Jimenez-Mora were for ced to re turn t o Colombia, she would be able to rel ocate her self in a differ ent part of the count

rywhere she might be able t o “hide her

financi al si tuati on bette r.” A.R. at 68. Jimenez-Mora cl aims thi s is not true, citing the 19 99 C oun try Repo rt detailing the ub iquitou s natu re of th e gue rrilla gro ups ’ inf

luen ce in Co lom bia. See Appellant Br. at 52. The government , in r esponse, points to the St ate Department Profil e of Asylum Claims and Country Conditions for Co lom bia, w hich exp lains that t he th reat t o w ealth y indiv idu als is “in m ost c ase s . . . localize d in n ature.” A.R . at 235 . This s tatem ent fro m the Co lomb ia Pro file see ms to squarel y suppor

t the I J’s finding. On the other hand, the IJ is not exact ly clear in quanti fyi ng the probabil ity that inter nal rel ocati on within Colombi a would actual ly work in Jimenez- Mora’s case – t hat is, whether it

is more l ikely

than not t

hat Ji menez-Mora would not be subj ect t o further threat s if she were removed to a di fferent area i n Colombia other than Medellin. For example, he say s that

she “could e scape any

immediate threat s of harm,” t hough she10

would “not neces sari ly

be safe, ” and that

“perhaps” s he could “hi de her fi nancialsit uation better” som ew here e lse in C olom bia. A .R. at 68 . In the e nd, ho we ver, the IJ app ears to conclud e that “peop le in another pa rt of Colom bia wo uld not kn ow” that Jimenez -Mo ra was wealthy

and impli es that

it would be “ reasonabl e” for her to make an atte mpt to l ive else wh ere w ithin her cou ntry of birth
. Id. These proposi tions are, of course, supporte d entirely by t he Colombia Profi le, which stat es that in “most” c ases the threat to weal thy ind ivid uals is loc alize d an d th at “in tern al rel oca tion is of ten a viab le op tion .” A .R. 2 35. While the I J might have s poken with greater cl arit y, his fi ndings wit

h regard t o inter

nal relocation sup port the con clusion that there is no “clear proba bility ” that Jimene z-M ora will be pe rsecut ed if re moved to an area of Colombia other

than Medellin. Accordingly , the IJ corr ectl y deni ed withholding of removal on t he grounds that Jimenez-Mora did not show that she would be persecuted “on account of” her status as a busin esspe rson, o r that the re w as a “c lear pro bability” tha t she w ould be pe rsecu ted if removed to Colombia
. D. Finally, Jimenez-Mora cl aims the I J erre d in rej ecti ng her petition for reli ef under the Conventi on Against Tort ure. To be el igibl e for CAT relief, Jimenez-Mora must prove that s he is mo re lik ely tha n no t to b e tor ture d if r em ove d to Co lom bia. See Abdulrahman v. Ashcroft , 330 F.3d 587, 592 (3d Cir. 2003). Under t he rele vant regul ations , “t ortur e” means “severe pain or s uffering” infli cted “at the ins tigation of or wit h the consent

or11

acqui es cen ce o f a p ubl ic off ic ia l o r o th erper sonactin g i n anoff ic ia l c apa ci ty .” 8 C. F. R. 208 .18(a)( 1). “A cquie scen ce of a pub lic off

icial requ ires that th e pub lic off icial, prior to the ac tivity constitutin g tortur e, hav e aw arene ss of s uch a ctivity and th ereaf ter brea ch his or her legal respo nsibility to intervene to p revent such activity.” 8 C.F.R. 208.18 (a)(7). The IJ denie d Jimenez-Mora re lief under CAT on the grounds that there was “no testimo ny at all in this c ase tha t the gu errillas, ev en if th ey wer e to tortu re the re spon dent, would be doing so wit

h the acqui escence of t

he government. ” A.R. at 67. The IJ noted that the mere fact th at a go vern men t is unab le to co ntrol or stop a lleged torture is insu ffic ient t o sh ow acq uies cen ce. See A.R . at 67 , citing Matte r o f S- V- , Int . Dec. 3430 (BIA 2000). At her hearing, Ji menez-Mora clai med to have tried to s eek help fr om the poli ce and federal authoriti es in the face of the threateni ng phone calls, and that those govern mental en tities did nothing to assist her de spite her pleas. In fac t, Jimenez-M ora test ifie d that, on the loc al le vel at least , the stre et poli ce often act ually “unite d” with the gue rrilla forc es. See A.R. at 132. Thus, it is somewhat uncl ear from her test imony whether the government offi cial s, i n decli ning to help Jimenez-Mora, did so becaus e they lacked t he abili ty to he lp he r, o r w he th er th ey s im pl y chose not to h elp. See A.R. at 133 (tes timony

that t he federalauthori ties “said t hat unti l somebody ’s dead t hey can’t do anyt hing”). Obviously , if J imenez-Mora’s t esti mony that the loc al poli ce unit ed with the guerri llas is accur ate and cr edible (and the I J made no findi ng that it was not) , that fact12

would suggest t

hat the government was not s imply unable t o help Ji menez-Mora, but t hat it ac quiesced in some degree. On the other hand, the IJ’s citation t o Matte r o f S- V- in
conne ction with the C AT claim sugg ests that he ma y have been relying on the BIA ’s determ ination in that c ase tha t the “[ Co lomb ian] G over nm ent ac tively, althou gh to date unsuccessf

ully , combats the guerrill as,” and t hus does not “ acquiesc e to the ty pes of acti viti es that

[Jimenez- Mora] fears [s he] would suffer at the hands of the gue rri llas .” Id. at 11. Thus, we beli eve that substantial e vidence suppor ts the IJ’s finding of

nonacq uies cen ce. Moreover, even i f we were to rule that t he findi ng of government acqui escence was not support ed by s ubstant ial e vidence, a close r eading of t he IJ’s opinion indicat es that he did not nec essari ly rely solely on a l ack of government a cquiesce nce in denying CAT relief. The IJ states, “There is no testimony at all in t his case that t

he guerrillas, even if they were to torture the respondent , would be doi ng so with the acquies cence of the go vern men t.” A.R . at 67 (e mp hasis a dded ). The IJ’s use of the subju nctive “eve n if they we re” su gges ts that he did n ot think it likely that Jim enez -M ora w ould be su bject to “torture ” if fo rced to return to Co lomb ia. Suc h a po sition, of cour se, is con sistent w ith his earli er rul ings fi nding it unlikely t

hat Ji menez-Mora would be “persecuted” upon removal to Co lomb ia – at lea st, upo n rem oval to anyw here in Co lomb ia besid es M edellin . Wh ile the IJcerta inly

could have been more explic it in his analysi s, we thi nk it i s clear enough that he intende d to impl icitly incorpor ate hi s earl ier “pe rsecut ion” anal ysi s here, and thathis re asoning al ong these l ines can be “reasonably . . . di scerned. ” Motor V ehicle Mfrs.

Ass'n v. State Far

m M ut. Auto. Ins. Co. , 463 U.S. 29, 43 (1983). Accordingly , we agree that t he denialof CAT relief maybe support ed on the addi tionalground thatJimenezM ora h as faile d to sh ow that she will “m ore like ly than no t” be to rtured if rem oved to Co lom bia. III. Fo r the for ego ing reas ons , Jim ene z-M ora ’s pe tition for rev iew is de nied
.

/s/ Sa mu el A . Ali to, Jr. Circuit Judge15