2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-25-2013

William Lopez-Albeno v. Attorney General United

States

Precedential or Non-Precedential: Non-Precedential

Docket No. 12-4130

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 12-4130

___________

WILLIAM LOPEZ-ALBENO,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A089 238 057)

Immigration Judge: Honorable R.K. Malloy

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

June 19, 2013

Before: SMITH, GREENAWAY, JR. and SHWARTZ, Circuit Judges

(Opinion filed: June 25, 2013)

___________

OPINION

___________

PER CURIAM
2

William Lopez-Albeno (“Lopez”)1

Lopez, a native and citizen of Guatemala, entered the United States without 

inspection in 2001 to find work. He applied for withholding of removal and protection 

under the Convention Against Torture (“CAT”) in 2009. Lopez testified that in 2006, his

disabled brother, then age 13, had been raped by a neighbor who was a member of a 

gang. Lopez’s mother reported the rape to the police, but then dropped the charges when 

the rapist threatened the family with death. Lopez argued that if he returned to 

Guatemala, the rapist would persecute him as a member of a particular social group; i.e., 

his nuclear family, because Lopez had sent money to his mother to investigate the rape.

petitions for review of an order of the Board of 

Immigration Appeals that dismissed his appeal of an Immigration Judge’s (“IJ”) removal 

order. We will deny the petition for review.

The IJ found Lopez credible, but denied all relief except voluntary departure. 

Lopez appealed to the BIA. The BIA affirmed the IJ’s determination that Lopez had 

failed to file a timely asylum application, and that he failed to meet his burden of proof 

for withholding of removal or protection under the CAT. Lopez filed a timely petition 

for review.

We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1).

2

 1 The Board of Immigration Appeals’ caption lists the name as “William Lopez-Alpeno.” 

However, it appears that Petitioner’s true name is Wilian Lopez Albeño. A.R. 105-06, 

254. We will follow our docket’s caption, which corrects the second surname, but 

repeats the apparent misspelling of the first name.

 In order to establish 

2 We have jurisdiction to consider only issues that have been administratively exhausted. 
3

eligibility for withholding of removal, a petitioner must show that it is more likely than 

not that his life or freedom would be threatened if returned to his country due to a 

protected ground, such as membership in a particular social group. Kaita v. Att’y Gen., 

522 F.3d 288, 296 (3d Cir. 2008). The feared persecutory acts must be committed by the 

government or forces the government is either unable or unwilling to control. Garcia v. 

Att’y Gen., 665 F.3d 496, 505 (3d Cir. 2011). We will reverse a Board decision denying 

withholding of removal only if a “reasonable fact-finder would have to conclude that the 

requisite fear of persecution existed.” Li v. Att’y Gen., 633 F.3d 136, 140 (3d Cir. 

2011).3

We need not reach the question of whether Lopez’s family is a legally cognizable 

particular social group, as we agree with the BIA that he has not shown a clear 

 

8 U.S.C. § 1252(d)(1); Castro v. Att’y Gen., 671 F.3d 356, 365 (3d Cir. 2012) 

(exhaustion requirement attaches to each particular issue raised by petitioner). The brief 

Lopez’s attorney filed with the BIA consisted of one sentence, devoid of any issues. 

A.R. 45. His notice of appeal to the BIA consists of two factual assertions and one legal 

conclusion, but does not assert any error on the part of the IJ. A.R. 60. Nonetheless, 

because the BIA considered, sua sponte, whether Lopez warranted withholding of 

removal, we have jurisdiction to consider that question. Lin v. Att’y Gen., 543 F.3d 114, 

126 (3d Cir. 2008). Counsel’s submissions on appeal also barely meet the 

professionalism this Court expects, as reflected by his arguments that lack any basis in 

law or extensions thereof (such as urging us to apply a “reasonable child” standard to 

determine whether Lopez had established the requisite fear of persecution), and his loose 

use of facts (stating that Lopez was “forced to leave Guatemela” and was “scared out of 

his wits” when testimony shows that Lopez left for economic reasons, well before his 

brother’s rape).

3 Lopez has not raised any issues regarding the untimeliness of his asylum claim or the 

denial of relief under the CAT. Chen v. Ashcroft, 381 F.3d 221, 235 (3d Cir. 2004)

(issues not raised in opening brief waived).
4

probability of being persecuted in Guatemala by a person or organization that the 

government is unwilling to control. Indeed, it appears that the government was willing to 

prosecute the rapist, but did not do so based on Lopez’s family’s request. We will deny 

the petition for review, as a reasonable fact-finder would not be compelled to conclude 

that Lopez has established the requisite fear of persecution.