2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-4-2012

Franklin Chavez v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-4535

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-4535

___________

FRANKLIN CHAVEZ; TERESITA VICTORIA VIZUETA VANEGAS,

Petitioners

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency Nos. A99 596 865 and A99 596 868)

Immigration Judge: Honorable Charles M. Honeyman

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

October 3, 2012

Before: SLOVITER, GREENAWAY, JR., and COWEN, Circuit Judges

(Opinion filed: October 4, 2012)

___________

OPINION

___________

PER CURIAM

Franklin Chavez and Teresita Victoria Vizueta Vanegas, husband and wife, 
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petition for review of an order of the Board of Immigration Appeals (“BIA” or “Board”), 

which dismissed their appeal from an Immigration Judge’s (“IJ”) final removal order. 

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

Chavez and his wife arrived in the United States as visitors in 2002 and stayed 

longer than authorized by their visas. In removal proceedings in 2008, they submitted 

applications for withholding of removal pursuant to section 241(b)(3) of the Immigration 

and Naturalization Act (“INA”) [8 U.S.C. § 1231(b)(3)], expressing fear of persecution 

because of membership in a particular social group.1

The IJ determined that the couple’s subjective fears were genuine, but that they 

were not members of a cognizable particular social group. A.R. 31. The IJ found that the 

proposed particular social group did not meet the “social visibility” and “particularity” 

 Chavez clarified in a memorandum 

that the particular social group was based on three factors: (1) their long-term residence 

in the United States, (2) their affluence, or the perception of having become affluent in 

the United States, and (3) their association with highly influential and wealthy people in 

the United States. A.R. 324. Chavez claimed that because of membership in this social 

group, he and his wife would likely be targeted for kidnapping and/or extortion in 

Ecuador.

 

1 Although Vanegas submitted her own application, she primarily relied on Chavez’s 

application, noting that her claim was “basically the same” as his. A.R. 138. For ease of 

reference, we will refer only to Chavez’s application. The couple did not seek asylum, as 

any such claim would have been time-barred. See INA § 208(a)(2)(B) [8 U.S.C. 

§ 1158(a)(2)(B)], A.R. 155. At a merits hearing, they also withdrew any claim for 
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requirements set forth in In re A-M-E- & J-G-UOn appeal, the Board, citing 

, 24 I. & N. Dec. 69 (BIA 2007). A.R. 

39-40. The IJ also noted that even if the proposed particular social group met the legal 

requirements, the record did not support a finding that the couple had “been able to prove 

a clear probability of harm on account of such proposed membership.” A.R. 42.

Valdiviezo-Galdamez v. Attorney General, 663 F.3d 

582, 603-04 (3d Cir. 2011), noted that this Court had “declined to defer under Chevron, 

U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), to the 

Board’s consideration of ‘social visibility’ and ‘particularity’ as additional factors 

relevant to determining whether a proposed particular social group is legally cognizable.” 

A.R. 4. The Board held, however, that even without consideration of those factors, the 

proposed social group was not legally cognizable. The BIA further agreed with the IJ that 

even if Petitioners had established a legally cognizable particular social group, they had 

not proven a clear probability of persecution. The BIA noted that even though Ecuador 

has the seventh-highest kidnapping rate in the world, “the United States Department of 

State’s [2008 Human Rights Report: Ecuador, A.R. 304] reported 354 kidnappings and 

143 express kidnappings (in which a person is driven around and forced to make 

withdrawals of personal funds) in a country with approximately 13.8 million people.” 

A.R. 4. The BIA thus found it “speculative to conclude that [Petitioners] will be 

kidnapped.” Id. 

 

protection under the United Nations Convention Against Torture. A.R. 155.

 The BIA also held that the record did “not show that the Ecuadorian 
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government would be unable or unwilling to protect them from harm.” A.R. 4-5. The 

BIA thus denied relief.

Petitioners filed a timely petition for review. We have jurisdiction pursuant to 8 

U.S.C. § 1252(a)(1). An individual may not be removed from the United States “if the 

Attorney General believes that the individual’s life or freedom would be threatened in the 

country of removal on account of race, religion, nationality, membership in a particular 

social group, or political opinion.” Yusupov v. Att’y Gen., 650 F.3d 968, 977 (3d Cir. 

2011); INA § 241(b)(3)(A) [8 U.S.C. § 1231(b)(3)(A)]. In order to establish eligibility 

for withholding of removal, a petitioner must show “a ‘clear probability,’ that is, that ‘it is 

more likely than not’ that her life or freedom would be threatened if returned to her 

country due to her race, religion, nationality, membership in a particular social group, or 

political opinion.” Kaita v. Att’y Gen., 522 F.3d 288, 296 (3d Cir. 2008) (citation 

omitted). The determination of whether an applicant is likely to be persecuted is a factual 

matter that we review under the substantial evidence test. Huang v. Att’y Gen., 620 F.3d 

372, 379, 382-83 (3d Cir. 2010). “[W]e will reverse based on a factual error only if any 

reasonable fact-finder would be ‘compelled to conclude otherwise,’ 8 U.S.C. 

§ 1252(b)(4)(B).” Id. 

We need not reach the question of whether Chavez has proposed a legally 

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

probability of being persecuted in Ecuador on account of membership in any such group. 

at 379.
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Substantial evidence in the record supports the BIA’s conclusion that the possibility that 

Chavez and his wife will be kidnapped is speculative. Given the statistics in the record, 

we are not “compelled to conclude” that it is more likely than not that Chavez and his 

wife will be kidnapped in Ecuador. Aside from the statistical problem, the record is also 

devoid of evidence that people in Chavez’s proposed social group (wealthy, or perceived 

to be wealthy, long-time residents of the United States, with connections to influential 

U.S. citizens) are targeted for persecution in Ecuador. Chavez attempts to bolster this 

argument with extra-record evidence, submitted in his appendix. We are precluded from 

considering such evidence. See

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

8 U.S.C. § 1252(b)(4)(A).