Filed: Apr. 22, 2011
Latest Update: Feb. 22, 2020
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 10-3456 _ JUAN CARLOS CANO ARIAS; ANGELICA LOPERA GONZALEZ, Petitioners v. ATTORNEY GENERAL OF THE UNITED STATES, Respondent _ On Petition for Review of an Order of the Board of Immigration Appeals (Agency Nos. A097-847-393, A097-847-394) Immigration Judge: Honorable Henry S. Dogin _ Submitted Pursuant to Third Circuit LAR 34.1(a) April 20, 2011 Before: BARRY, HARDIMAN and COWEN, Circuit Judges (Opinion filed: April 22,
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 10-3456 _ JUAN CARLOS CANO ARIAS; ANGELICA LOPERA GONZALEZ, Petitioners v. ATTORNEY GENERAL OF THE UNITED STATES, Respondent _ On Petition for Review of an Order of the Board of Immigration Appeals (Agency Nos. A097-847-393, A097-847-394) Immigration Judge: Honorable Henry S. Dogin _ Submitted Pursuant to Third Circuit LAR 34.1(a) April 20, 2011 Before: BARRY, HARDIMAN and COWEN, Circuit Judges (Opinion filed: April 22, 2..
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 10-3456
___________
JUAN CARLOS CANO ARIAS;
ANGELICA LOPERA GONZALEZ,
Petitioners
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency Nos. A097-847-393, A097-847-394)
Immigration Judge: Honorable Henry S. Dogin
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 20, 2011
Before: BARRY, HARDIMAN and COWEN, Circuit Judges
(Opinion filed: April 22, 2011)
___________
OPINION
___________
PER CURIAM
Petitioners, Juan Carlos Cano Arias and Angelica Lopera Gonzalez, petition for
review of the Board of Immigration Appeal’s (“BIA”) denial of Cano Arias’ motion to
reopen. For the following reasons, we will deny the petition for review.
Cano Arias and Lopera Gonzalez, natives and citizens of Colombia, entered the
United States in 2000 and 2001, respectively. In 2003, they were charged with
removability pursuant to INA § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B), as aliens who
had overstayed their authorized admission period. They conceded removability. Cano
Arias applied for political asylum, withholding of removal, relief under the Convention
Against Torture (“CAT”), and, in the alternative, voluntary departure.1
In 2004, the Immigration Judge (“IJ”) denied Cano Arias’ application for political
asylum as untimely, granted his application for withholding of removal, and did not
consider his application under CAT. Cano Arias and the Department of Homeland
Security (“DHS”), however, filed a joint motion to reopen the proceedings and remand
the matter to the IJ “ . . . for the sole purpose of affording the [IJ] with an opportunity to
enter a full decision,” which the BIA granted.2
In 2006, the IJ once again denied Cano Arias’ application for political asylum as
untimely, granted his application for withholding of removal, and did not consider his
application under CAT. Cano Arias had testified that he was a mechanic and electrician,
and served as the Chief of Maintenance for the General Steel Company in Colombia. He
had testified that members of the National Liberation Army (“ELN”), a recognized
1
Cano Arias is the lead petitioner in this case. His wife, Lopera Gonzalez, is a
derivative petitioner; her claims are dependent on Cano Arias’ claims.
2
The IJ stated that because counsel for DHS indicated that she would not appeal
2
Colombian guerrilla group involved in the destruction of electrical equipment, power
plants, and other types of important facilities run by the Colombian Government,
attempted to recruit him. In September 1999, members of the ELN questioned Cano
Arias’ father about his whereabouts. In June 2000, a ELN member approached Cano
Arias at his workplace and demanded his cooperation, informing him that the ELN had
two people infiltrate the company and could blow the company up. Soon after this
incident, Cano Arias fled to the United States. Cano Arias’ mother informed him that the
ELN was still looking for him as of 2004.
Based on Country Reports and Cano Arias’ testimony, the IJ concluded that Cano
Arias was eligible for withholding of removal based on imputed political opinion. The IJ
determined that Cano Arias’ refusal to join the ELN constituted a statement of imputed
political opinion. The IJ therefore concluded that Cano Arias would be persecuted if he
returned to Colombia because Cano Arias still possessed a skill desired by the ELN and
Country Reports are clear that those who do not assist the ELN are murdered, threatened,
or harmed.
DHS appealed the IJ’s grant of withholding of removal. Although the BIA
found no clear error in the IJ’s factual findings, in May 2008, the BIA sustained DHS’
appeal. The BIA concluded that Cano Arias did not qualify for withholding of removal
because he did not testify that he explicitly expressed any opposition to the ELN based on
his decision, his 2004 oral opinion was not thorough.
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his political views. The BIA remanded the case back to the IJ to consider Cano Arias’
request for relief under CAT and voluntary departure.
The IJ held another hearing in December 2008 to allow Cano Arias to renew his
application for withholding of removal by presenting new evidence. At this hearing,
Cano Arias testified that he explicitly refused the ELN, informing the ELN member that
approached him at his workplace that he would not do what the ELN wanted and did not
agree with the politics of the ELN as it was against his moral principles. After reviewing
the record, the IJ determined that Cano Arias’ testimony was presented to meet the BIA’s
objections and his testimony conflicted with his earlier testimony and application
documents. The IJ denied his application for withholding of removal. The IJ also denied
Cano Arias’ application for relief under CAT because he could not prove that he would
be tortured by the Colombian government.3 In November 2009, the BIA dismissed his
appeal,4 agreeing with the IJ’s determinations.
In December 2009, Cano Arias filed a motion to reopen, presenting “new facts,”
articles regarding the ELN and Fuerzas Armadas Revolucionarias de Colombia
(“FARC”), another Colombian guerilla group. On July 30, 2010, the BIA denied the
motion to reopen. The BIA found that the new evidence did not address the basis upon
3
The IJ noted that Cano Arias conceded that he was not eligible for asylum and
that he withdrew his application for voluntary departure.
4
The BIA noted that Cano Arias appealed only the IJ’s withholding of removal
4
which Cano Arias’ application for withholding of removal was denied. Further, many of
the articles offered as new evidence were available prior to the IJ’s December 2008
hearing. On August 17, 2010, petitioners filed a petition for review of the BIA’s July
2010 order denying the motion to reopen. In their brief in support of their petition for
review, petitioners contest the BIA’s July 2010 order, as well as the BIA’s November
2009 and May 2008 orders.
We have jurisdiction to review the BIA’s denial of Cano Arias’ motion to reopen
pursuant to 8 U.S.C. § 1252(a). However, we lack jurisdiction to review the BIA’s
November 2009 and May 2008 orders because petitioners did not file a timely petition for
review of these orders. See INA § 242(b)(1), 8 U.S.C. § 1252(b)(1) (30 days to file a
petition for review); Stone v. Immigration & Naturalization Serv., 514 U.S 386, 394-406
(1995) (timely motion to reconsider or reopen does not toll running of filing period for
review of underlying removal order). Petitioners’ petition for review was filed on August
17, 2010, within thirty days of the BIA’s denial of the motion to reopen, but not within
thirty days of the BIA’s November 2009 order dismissing the appeal or May 2008 order
remanding the case back to the IJ.
The Government contends that petitioners have waived any challenge to the BIA’s
order denying the motion to reopen because they failed to develop an argument
concerning the BIA’s denial of the motion to reopen in their opening brief. We agree. In
determination. Thus, any objection to the IJ’s CAT determination was waived.
5
their brief, petitioners argue that the BIA abused its discretion in finding that Cano Arias
had not shown imputed political opinion because the BIA failed to consider the
contextual background of his case. Thus, petitioners assert that they should have been
granted asylum, withholding of removal, and relief under CAT. Petitioners also argue
that the BIA should not have remanded the matter to the same IJ it reversed in its May
2008 order. Although petitioners state that the BIA abused its discretion by denying the
motion to reopen, petitioners’ brief fails to raise or discuss any issue with respect to the
denial of the motion to reopen. We therefore conclude that petitioners have waived
review of the BIA’s order denying the motion to reopen. See Kost v. Kozakiewicz, 1
F.3d 176, 182 (3d Cir. 1993) (failure to present an argument in support of an issue raised
on appeal in opening brief results in waiver of the issue). We cannot consider the
arguments in petitioners’ opening brief as they pertain to the BIA’s November 2009 and
May 2008 orders, over which we lack jurisdiction.
Accordingly, we will deny the petition for review.
6
