2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-21-2009

De Herrera v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3683

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 08-3683

___________

MARITZA RAMOS DE HERRERA,

 Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES

____________________________________

Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A072-529-077)

Immigration Judge: Daniel A. Meisner

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

December 16, 2009

Before: RENDELL, FISHER and GARTH, Circuit Judges

(Filed: December 21, 2009)

___________

OPINION OF THE COURT

___________

PER CURIAM.

Maritza Ramos De Herrera (“Ramos”), a thirty-four-year-old native and citizen of

Guatemala, seeks review of a final order of removal entered by the Board of Immigration

Appeals (“BIA”). We will deny the petition for review.
2

I.

Ramos entered the United States in 1994 without inspection, and filed an

application for asylum at that time. In 2006, the government served a Notice to Appear,

and Ramos filed an updated asylum application. At a hearing before an Immigration

Judge (“IJ”), Ramos conceded removability as an alien present without being admitted or

paroled, and she pursued applications for asylum, withholding of removal, relief under

the Convention Against Torture (“CAT”), and cancellation of removal under 8 U.S.C.

§ 1229b(b)(1). The IJ denied relief, finding that Ramos failed to meet her burden of

proof, but granted voluntary departure.

The BIA affirmed, issuing its own decision. The BIA explained that Ramos

sought asylum based on a claim that she suffered past persecution on account of her

membership in a particular social group, which she defined as “young Guatemalan

females targeted for recruitment by the guerillas and who suffered persecution of a sexual

nature if they refused to assist the guerillas.” While the evidence showed that Ramos was

harassed and threatened by guerillas in Guatemala, she was never harmed physically or

sexually, and thus the BIA concluded that Ramos is not a member of the group she is

attempting to define, and that, furthermore, the alleged group lacks social visibility. The

BIA held that Ramos failed to provide sufficient evidence that the threats she received

rose to the level of persecution. The BIA also found insufficient evidence of a wellfounded fear of future persecution. Even assuming that Ramos could establish the
3

existence of her particular social group, the BIA held that Ramos is not currently a

member of that group because she has matured in age since 1994, was never harmed by

the guerrillas, and has not established that females of her age face the same threats as

females of grade school age. The BIA also held that Ramos failed to meet the more

stringent burden of proof for withholding of removal, and did not establish under the

CAT that she more likely than not faces torture in Guatemala. 

Finally, the BIA held that Ramos did not meet her burden of proof for cancellation

of removal, which she sought based on a claim that her six-year-old United States citizen

son would suffer “exceptional and extremely unusual hardship” if removed. The BIA

noted the record evidence of diminished educational opportunities, poor health care, a

lower living standard, and crime in Guatemala, and also considered the child’s relative

youth, ability to speak Spanish, good health, and family support in Guatemala. Based on

this evidence, the BIA held that Ramos did not show an exceptional and extremely

unusual hardship. Ramos timely filed a petition for review in this Court. 

II. 

We first consider our jurisdiction. We have jurisdiction to review the BIA’s final

order of removal, including the denials of asylum, withholding of removal, and CAT

relief. See 8 U.S.C. § 1252(a)(1). However, despite Ramos’s argument to the contrary,

we lack jurisdiction to review the denial of cancellation of removal under § 1229b(b)(1). 

“This Court generally lacks jurisdiction to review discretionary decisions made under
 The BIA cited and relied upon the standards set forth in In re: Gonzalez- 1

Recinas, 23 I.&N. Dec. 467 (BIA 2002) (en banc), In re: Andazola-Rivas, 23 I.&N. Dec.

319 (BIA 2002) (en banc), and In re: Monreal-Aguinaga, 23 I.& N. Dec. 56 (BIA 2001). 

After considering the relevant factors identified in these cases, the BIA concluded: 

“While adjusting to life in Guatemala may be difficult for [Ramos]’s son, his youth,

4

§ 1229b regarding cancellation of removal.” Mendez-Reyes v. Att’y Gen., 428 F.3d 187,

189 (3d Cir. 2005) (citing 8 U.S.C. § 1252(a)(2)(B)(i)). We have held that a

determination regarding the “exceptional and extremely unusual hardship” requirement is

a “quintessential discretionary judgment.” Mendez-Moranchel v. Ashcroft, 338 F.3d 176,

179 (3d Cir. 2003). Jurisdiction is retained in such cases only to consider “constitutional

claims or questions of law.” 8 U.S.C. § 1252(a)(2)(D).

Ramos contends that she raises a “question of law” because the BIA held her claim

to a “heightened legal standard” by “ignor[ing] the cumulative effect” of the hardships

that her son would face. A review of Ramos’s briefing, however, reveals that her

argument amounts to no more than an attempt to reargue the persuasiveness of the

hardship evidence. Such an argument is not exempt from the jurisdictional bar. See

Mendez-Moranchel, 338 F.3d at 179 (“[W]e lack jurisdiction to review the issue Mendez

presents on appeal--whether the [BIA] and [IJ] were correct in determining that he does

not meet the hardship requirements for cancellation of deportation.”). We see no

indication that the BIA applied an incorrect legal standard here, and the BIA cannot be

said to have applied an impermissibly “heightened” standard merely because it chose to

deny relief after considering the record evidence before it. Thus, we lack jurisdiction to 1
health, ability to communicate in Spanish, and access to family should help him through

his adjustment period.” Ramos contends that the BIA in effect required her to show that

removal would work an “unconscionable” hardship on her son. However, nothing in the

BIA’s decision indicates that it deviated from its established standards or required a

showing from Ramos beyond that normally required to establish an “exceptional and

extremely unusual hardship.” Indeed, the BIA’s decision is consistent with In re:

Monreal-Aguinaga, which holds that, to establish “exceptional and extremely unusual

hardship,” an alien must show that the qualifying relative would suffer hardship

“substantially beyond” that which would be expected to result from removal. 23 I.&N.

Dec. at 60.

 Ramos’s suggestion that the BIA “adopted” the IJ’s decision is not supported by 2

the record. The BIA clearly conducted its own analysis, and thus our review is limited to

the BIA’s decision.

5

review the denial of cancellation of removal. 

III.

Turning to the removal order, where, as here, the BIA rendered its own decision,

we review the BIA’s decision, not the IJ’s decision. See Wong v. Att’y Gen., 539 F.3d 2

225, 230 (3d Cir. 2008). “The BIA’s conclusions regarding evidence of past persecution

and the well-founded fear of persecution are findings of fact,” reviewed solely for

“substantial evidence.” Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir. 2006). Under

the deferential substantial evidence standard, the BIA’s findings “must be upheld unless

the evidence not only supports a contrary conclusion, but compels it.” Abdille v.

Ashcroft, 242 F.3d 477, 484 (3d Cir. 2001).

We first address Ramos’s asylum claim. The Attorney General may grant asylum

if the alien establishes that she is a “refugee,” which requires the alien to prove that she

was persecuted in the past or has a well-founded fear of future persecution due to, inter
 The BIA did not make a determination that Ramos lacked credibility (nor did the 3

IJ), and thus we treat Ramos’s testimony as credible. See 8 U.S.C. § 1158(b)(1)(B)(iii)

(“[I]f no adverse credibility determination is explicitly made, the applicant or witness

shall have a rebuttable presumption of credibility on appeal.”).

6

alia, membership in a particular social group. 8 U.S.C. § 1158(b)(1)(B)(i). A “particular

social group” refers to “a group of persons all of whom share a common, immutable

characteristic.” Lukwago v. Ashcroft, 329 F.3d 157, 171 (3d Cir. 2003) (quotation marks

omitted). “[W]hatever the common characteristic that defines the group, it must be one

that members of the group either cannot change, or should not be required to change

because it is fundamental to their individual identities or consciences.” Id. (quotation

marks omitted). 

Ramos argues that the BIA erred in failing to recognize that she was subjected to

past persecution based on membership in a particular social group (“young Guatemalan

females targeted for recruitment by the guerillas and who suffered persecution of a sexual

nature if they refused to assist the guerillas”), and that she is therefore entitled to a

presumption of future persecution. The record, however, does not compel a conclusion

contrary to that reached by the BIA. 

As the BIA observed, the group that Ramos attempts to define comprises females

who suffered sexual abuse or harm if they refused assistance to the guerillas. But Ramos

does not claim that she was harmed physically or sexually. In 1986, when she was age 3

twelve, guerillas began verbally harassing and threatening Ramos as she left school each
 Ramos married in Guatemala but has since separated from her husband, who also 4

came to the United States and was placed in removal proceedings. Notably, Ramos

asserts in her briefing that her husband was “once shot by the guerillas,” but this appears

to misstate the record. In her testimony before the IJ, Ramos stated that the guerillas

once “followed [her husband] and they shot at him.” A82 (emphasis added). There is no

evidence that the guerillas ever shot her husband.

7

day, claiming that they would kill Ramos and her family if they refused support for the

guerillas. Ramos claims that the guerillas forced some of her schoolmates to serve as

prostitutes, and that they were raped and tortured. Ramos quit high school and remained

in fear of the guerillas even after she married in 1990. Ramos fears returning to 4

Guatemala because “people” will know that she was in the United States, and that she

will be kidnapped or killed. This record simply does not compel a finding that Ramos is

or was a member of the group that she seeks to define (assuming, arguendo, that Ramos’s

proposed group could qualify as a “particular social group” for asylum purposes).

Ramos argues that the threats she endured rise to the level of past persecution

because “the threats against [her] were sufficiently imminent and serious.” This Court

has held that “unfulfilled threats must be of a highly imminent and menacing nature in

order to constitute persecution.” Li v. Att’y Gen., 400 F.3d 157, 164 (3d Cir. 2005). Our

review of the record does not compel a finding that the threats against Ramos rise to this

level. Although the threats that Ramos received are troubling, they were not “sufficiently

imminent or concrete ... to be considered past persecution.” Id. at 165 (rejecting claim

that threats of physical mistreatment, detention, or sterilization amounted to past
 Although Ramos suggests in passing in her opening brief that the BIA erred in 5

rejecting her application for withholding of removal under 8 U.S.C. § 1231(b)(3)(A), she

sets forth no argument on the issue. We deem this issue waived and do not address it. 

See Lie v. Ashcroft, 396 F.3d 530, 532 n.1 (3d Cir. 2005). 

8

persecution where neither the alien nor members of his family were actually imprisoned,

beaten, sterilized, or otherwise physically harmed); see also Chavarria, 446 F.3d at 518

(“[W]e have refused to extend asylum protection for threats that, while sinister and

credible in nature, were not highly imminent or concrete or failed to result in any physical

violence or harm to the alien.”). Further, because Ramos failed to establish past

persecution, the BIA correctly held that she was not entitled to a presumption of a wellfounded fear of future persecution. 

Finally, Ramos claims that the BIA erred in failing to grant CAT relief. Ramos 5

alleges that she will likely be tortured or killed in Guatemala by “guerillas or by members

of other criminal groups,” “especially when the criminal elements realize that she has

been in the United States and will think that she is wealthy.” To be eligible for

withholding of removal under the CAT, Ramos had to show that it is more likely than not

that she would be tortured in Guatemala. See 8 C.F.R. § 208.16(c)(2); Sevoian v.

Ashcroft, 290 F.3d 166, 174-75 (3d Cir. 2002). Torture is defined as the intentional

infliction of severe pain or suffering “by or at the instigation of or with the consent or

acquiescence of a public official or other person acting in an official capacity.” 8 C.F.R.

§ 208.18(a)(1). “In order to constitute torture, an act must be specifically intended to
9

inflict severe physical or mental pain or suffering.” Pierre v. Att’y Gen., 528 F.3d 180,

186 (3d Cir. 2008) (en banc). That act must be “‘inflicted by or at the instigation of or

with the consent or acquiescence of a public official or other person acting in an official

capacity.’” Id. at 189 (quoting 8 C.F.R. § 208.18(a)(1)). It is not enough for public

officials to be “willfully blind” to torturous acts; the officials must “have the goal or

purpose of inflicting severe pain or suffering.” Id. at 190.

The record here does not compel a finding that Ramos more likely than not will be

tortured by guerillas or members of other groups, or that the Guatemalan government

would turn a blind eye to such activity. Although the 2006 State Department Report in

the record indicates that crime remains a widespread problem in Guatemala, Ramos

points us to no record evidence that uncontrolled “criminal elements” in Guatemalan

society are likely to torture a national returning from the United States because they

perceive her as wealthy.

IV.

For the foregoing reasons, we will deny the petition for review.