Filed: Aug. 02, 2006
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 8-2-2006 Diaz v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 05-2672 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "Diaz v. Atty Gen USA" (2006). 2006 Decisions. Paper 632. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/632 This decision is brought to you for free and open access by the Opinions of the
Summary: Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 8-2-2006 Diaz v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 05-2672 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "Diaz v. Atty Gen USA" (2006). 2006 Decisions. Paper 632. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/632 This decision is brought to you for free and open access by the Opinions of the U..
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Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
8-2-2006
Diaz v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-2672
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006
Recommended Citation
"Diaz v. Atty Gen USA" (2006). 2006 Decisions. Paper 632.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/632
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-2672
FAUSTO DIAZ-MUNOZ,
Petitioner
vs.
*ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
*Amended per the Clerk’s Order dated 6/16/06
____________
ON REVIEW OF A PETITION FOR REVIEW OF AN ORDER
OF THE UNITED STATES DEPARTMENT OF JUSTICE
BOARD OF IMMIGRATION APPEALS
(BIA No. A # 13-184-675)
____________
Submitted Under Third Circuit L.A.R. 34.1(a)
July 14, 2006
Before: SMITH, WEIS and ROTH Circuit Judges.
(Filed: August 2, 2006)
____________
OPINION
WEIS, Circuit Judge.
Mr. Fausto Diaz-Munoz petitions for review of decisions by the Board of
Immigration Appeals (“BIA”) denying his application for withholding of removal and
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relief under the Convention Against Torture (“CAT”) and denying his Motion to Reopen.
In ruling on the withholding and CAT claims, the BIA adopted and affirmed the decision
of the Immigration Judge (“IJ”). We have jurisdiction under 8 U.S.C. § 1252, as
amended by the Real ID Act, which became effective May 12, 2005. Because we find
that substantial evidence in the record supports the findings of the BIA, we will deny the
petition for review.
Petitioner was born on August 24, 1953 in the Dominican Republic. He
entered the United States in 1983, is married and has several children. He was convicted
of a federal narcotics violation in 1996 and was sentenced in the U.S. District Court for
the Eastern District of Pennsylvania to 48-months incarceration. In 1999, petitioner was
convicted for a narcotics violation in state court in Pennsylvania and received a sentence
of 36 to 72 months incarceration.
The petitioner’s testimony before the IJ in 2004 indicated that he was from
a well established family in the Dominican Republic. He testified that he had worked in
several government jobs that he secured through the influence of his family and, in 1979,
began working as a narcotics agent for the Dominican Republic’s national police. The
United States Drug Enforcement Administration (“DEA”) asked petitioner to assist in
acquiring information about drug trafficking, particularly evidence implicating corrupt
government or military officials. Eventually, petitioner secured and provided the DEA
with evidence implicating a high ranking police officer, Colonel Perez.
2
Petitioner testified that he was called to present evidence at a televised court
martial of Colonel Perez. The proceedings gained national attention and resulted in
Colonel Perez’s imprisonment.
After the court martial, the chief of the national police advised petitioner to
leave the country for fear that he would not be properly protected from people interested
in retaliating against him for his cooperation with the DEA. As a result, petitioner came
to the United States in 1983. He testified that, in the years since he arrived in the U.S.,
his relatives in the Dominican Republic have notified him that various unnamed
individuals had inquired about his whereabouts and threatened to physically harm him.
Petitioner sought withholding of removal and relief under the CAT,
contending that it was more likely than not that he would be tortured if he returned to the
Dominican Republic. Petitioner testified that Colonel Perez was living in the Dominican
Republic, and, although he was no longer a government official, he nonetheless continued
to assert significant influence there. Petitioner also named two officers in the Dominican
national police who knew that he had implicated them in drug trafficking. (App. 191-92).
Petitioner testified about systemic corruption in the Dominican Republic
and asserted that the Dominican media’s policy of publishing information about returning
deportees would alert his enemies of his arrival.
The IJ concluded that petitioner offered no evidence to support his claim
that Colonel Perez exercised influence over the government. The IJ also ruled that
petitioner had not provided any evidence suggesting that the government would acquiesce
3
in illegal, ultra vires actions taken by the two police officers. Instead, the IJ noted that the
latest information on the Dominican Republic indicated that the government had made
substantial strides to eradicate corruption, specifically that involving narcotics, including
arresting and dismissing numerous government officials. In essence, the IJ concluded
that petitioner had not proved that the Dominican government would, more likely than
not, acquiesce in illegal behavior by rogue government officials or former officials.
The BIA affirmed, explaining that petitioner bore the burden of proving
government acquiescence in torture and he had failed to demonstrate both (1) that the
government would be aware, through actual knowledge or willful blindness, of torturous
acts; and (2) that the government would breach its legal duty to protect petitioner. The
BIA also denied the Motion to Reopen because petitioner failed to show that the evidence
he intended to introduce at a new proceeding would be material and was not available, or
could not have been discovered, previously.
In his appeal to this Court, petitioner argues that the BIA erred in affirming
the IJ’s CAT decision because the IJ based its decision on Matter of Y-L, 23 I&N Dec.
270 (A.G. 2002). Specifically, petitioner argues that Y-L applies only in cases where the
petitioner did not testify credibly. Alternatively, petitioner argues that, if Y-L applied to
this case, the IJ failed to “genuinely” examine whether the government of the Dominican
Republic would willfully accept torturous actions directed at petitioner.
Where the BIA adopts the findings of the IJ and also discusses the basis for
the IJ’s decision, we review both the IJ’s and the BIA’s decisions. He Chun Chen v.
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Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004). We review the BIA’s legal determinations de
novo, subject to established principles of deference. See Smriko v. Ashcroft,
387 F.3d
279, 282 (3d Cir. 2004) (citations omitted). Factual findings must be upheld if they are
“‘supported by reasonable, substantial, and probative evidence on the record considered
as a whole.’” INS v. Elias-Zacarias,
502 U.S. 478, 481 (1992) (quoting 8 U.S.C. §
1105a(a)(4)).
To qualify for relief under the CAT, an alien must demonstrate that it is
more likely than not that he or she would be tortured if returned to the proposed country
of removal. 8 C.F.R. § 208.16(c). The petitioner bears the burden to show that he would
be tortured, and objective evidence is required. Berishaj v. Ashcroft, 378 F.3d 314, 332
(3d Cir. 2004).
In this case, the BIA concluded that the petitioner had not shown that the
Dominican government would be, at a minimum, willfully blind to torture by the
individuals petitioner claimed to fear.
The following factors are helpful when determining whether torture is more
likely than not: (1) evidence of past torture inflicted on the petitioner; (2) possibility that
the petitioner could relocate within the country of removal to an area where torture is
unlikely; (3) evidence of “gross, flagrant or mass violations of human rights” in the
country of removal; and (4) other relevant country conditions. See Amanfi v. Ashcroft,
328 F.3d 719, 725 (3d Cir. 2003) (quoting 8 C.F.R. § 208.16(c)(3)).
Petitioner testified about the people he thought would retaliate against him
5
and their reasons for wanting to harm him. However, petitioner did not provide any
evidence explaining why the government would sanction or turn a blind eye toward
actions by those individuals. Petitioner had no specific evidence to refute the
respondent’s evidence showing recent improvements in the Dominican Republic’s efforts
to ferret out and punish corruption. We find no error in the BIA’s ruling.
Petitioner contends also that the BIA erred in denying his Motion to Reopen
based on allegations that he intended to produce new evidence that consisted of several
newspaper articles from the 1980s discussing his role in prosecuting Colonel Perez.1
Petitioner contends that this evidence substantiates his claim that Colonel Perez had
completed his incarceration and was living in the Dominican Republic which would
inferentially support the claim that Colonel Perez would seek out petitioner to inflict harm
on or kill him.
The Board denied the petitioner’s motion because petitioner failed to show
that the evidence was unavailable or undiscoverable at the time of the prior proceedings
and because the evidence was cumulative.
We can see no error in the Board’s exercise of its discretion in ruling on this
issue. See I.N.S. v. Doherty, 502 U.S. 314, 323 (1992) (explaining that the Attorney
General has “broad discretion” to grant or deny a motion to reopen and that such motions
1
The IJ granted petitioner a continuance to gather the articles; however,
petitioner could not produce them in the time allotted. As a result, the IJ proceeded to
issue his opinion. While petitioner’s appeal to the BIA was pending, he secured the
information.
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are disfavored). In addition to the cumulative, non-material nature of the evidence, it was
over twenty years old and, therefore, technically “available” and “discoverable,” albeit
difficult to obtain.
For the foregoing reasons, we will deny Mr. Diaz-Munoz’s petition for
review of the BIA’s order.
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