Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-19-2004

Gutierrez-Curi v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-3314




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                                                        NOT PRECEDENTIAL

               UNITED STATES COURT OF APPEALS
                    FOR THE THIRD CIRCUIT




                             No. 02-3314




                MARIA DOLORES GUTIERREZ-CURI,

                                               Petitioner

                                   v.


   JOHN ASHCROFT, ATTORNEY GENERAL OF THE UNITED STATES,

                                               Respondent
                             ___________

ON PETITION FOR REVIEW FROM THE BOARD OF IMMIGRATION APPEALS

                          (No. A70-798-306)
                            ___________

               Submitted Under Third Circuit LAR 34.1(a)
                          September 3, 2003

       BEFORE: SLOVITER, NYGAARD, and ROTH, Circuit Judges.


                       (Filed: February 19, 2004)

                             ___________

                      OPINION OF THE COURT
                           ___________
NYGAARD, Circuit Judge.

                                            I.

              Appellant, Maria Gutierrez-Curi, is a citizen and native of Peru. On July

12, 1992, Gutierrez-Curi entered the United States as a non-immigrant visitor for

pleasure. On April 17, 1998, the Immigration and Naturalization Service (“INS”)

charged Gutierrez-Curi with removability under Section 237 of the Immigration and

Nationality Act. 8 U.S.C. § 1227(a)(1)(B). The INS alleged that Gutierrez-Curi had

remained in the United States for longer than permitted under her visa. Gutierrez-Curi

admitted the facts relevant to her removability and the Immigration Judge (“IJ”) found

that she was subject to removal. Gutierrez-Curi sought relief through an application for

asylum and withholding of removal.

              In support of her application, Gutierrez-Curi presented both documentary

and testimonial evidence. After receiving this evidence, the IJ found that Gutierrez-Curi

did not qualify for asylum or withholding of removal. Gutierrez-Curi then filed an appeal

with the Board of Immigration Appeals (“BIA”). Utilizing the streamlining procedures of

8 C.F.R. § 3.1(a)(7), the BIA affirmed the decision of the IJ without opinion.1 The instant

Petition for Review followed.




1.       Because the BIA affirmed the IJ’s decision without opinion, we review the
IJ’s opinion. Dia v. Ashcroft, 

, 245 (3d Cir. 2003) (en banc).

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              Gutierrez-Curi challenges three aspects of the BIA’s decision. First, she

asserts that substantial evidence does not support the IJ’s decision that she does not

qualify for asylum and withholding of removal. Second, she asserts that the BIA erred in

using the affirmance without opinion procedures authorized by 8 C.F.R. § 3.1(a)(7).

Finally, she claims the BIA erred by not considering her application under the United

Nations Convention Against Torture (“UNCAT”). We find no error in the BIA’s or IJ’s

decision and will deny the Petition for Review.

                                              II.

              The parties are familiar with the facts of this matter and, as such, we will

address only those facts that are particularly relevant to our analysis.

              Gutierrez-Curi first asserts that the IJ’s decision is not supported by

substantial evidence and is contrary to the decision a reasonable adjudicator would be

compelled to reach. This Court, sitting en banc, recently summarized our standard of

review over an IJ’s decision regarding applications for asylum and withholding of

removal. 

. As explained in Dia, we review the IJ’s findings of

fact to determine if they are supported by substantial evidence. 

Substantial

evidence supports an IJ’s factual determination when “a reasonable fact finder could

make such a determination based upon the administrative record.” 

of the record discloses substantial evidence in support of the

IJ’s decision that Gutierrez-Curi did not qualify for asylum or withholding of removal.



                                              3
To qualify for asylum, an alien must establish that he or she has suffered past persecution

or has a well-founded and reasonable fear of future persecution. Abdille v. Ashcroft, 

, 492 (3d Cir. 2001). Withholding of removal is a more stringent standard than

asylum, and an alien who does not qualify for asylum will not qualify for withholding of

removal. Janusiak v. INS, 

, 47 (3d Cir. 1991). The IJ’s decision that

Gutierrez-Curi did not suffer past persecution or have a reasonable, well-founded fear of

future persecution is well supported in the record. The Department of State Country

Report for Peru indicates that the Shining Path, the group Gutierrez-Curi named as her

persecutors, is weakening as a terrorist group. Also, Gutierrez-Curi’s own testimony

supports the IJ’s determination that she was incorrect in her belief that the Shining Path

was targeting her. A review of the entire record convinces us that a reasonable fact finder

could come to the same conclusion as the IJ.

              Gutierrez-Curi next challenges the BIA’s affirmance, without opinion, of

the IJ’s decision. This Court recently addressed the streamlining procedure utilized by the

BIA in this case and found it to be constitutional. 

. Gutierrez-

Curi argues that the use of the streamlining procedure in this case was inappropriate

because the IJ’s decision was incorrect. Based on the above analysis, we do not find that

the IJ’s decision was incorrect and, therefore, the BIA’s use of the affirmance without

opinion procedure was appropriate.




                                               4
              Finally, Gutierrez-Curi argues that we should remand this matter to the BIA

so it can issue an opinion regarding her UNCAT claim. 8 C.F.R. § 208.18(b)(1). While

Gutierrez-Curi makes this claim on appeal, she failed to apply for relief under UNCAT

before the BIA, failed to request a remand from the BIA to raise UNCAT before the IJ,

and failed to raise the possible applicability of UNCAT in her brief before the BIA. The

UNCAT regulations make it clear that an “alien who is in exclusion, deportation, or

removal proceedings on or after March 22, 1999 may apply for withholding of removal

under” the UNCAT regulations. 

proceedings were on

appeal to the BIA on March 22, 1999. As such, her removal order was not final and she

was still “in . . . removal proceedings on or after March 22, 1999.” See 8 U.S.C. §

1101(a)(47)(B) (indicating that an order of deportation is not final until either the BIA has

affirmed such order or the time period for seeking review by the BIA has expired). In

fact, Gutierrez-Curi’s brief to the BIA was not due, and she did not file it, until December

1999.

              Despite the clear language of the UNCAT regulations, Gutierrez-Curi did

not apply for withholding of removal under UNCAT or even mention UNCAT in her

brief before the BIA. Therefore, the BIA did not have the opportunity to address the

UNCAT claims she now makes on appeal. The precedent of this Court is clear that we

will not review an alien’s claims if he or she did not make those claims to the BIA.

Alleyne v. INS, 

, 1182 (3d Cir. 1989). As a result, we will not remand this



                                             5
matter to the BIA to address claims that Gutierrez-Curi did not properly assert in the first

instance.

              For the reasons set forth above, we will deny the Petition for Review.




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