Juan Carlos Flores-Zavala v. Atty Gen USA , 424 F. App'x 117 ( 2011 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 10-2464
___________
JUAN CARLOS FLORES ZAVALA,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A094-778-123)
Immigration Judge: Honorable Susan G. Roy
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 20, 2011
Before: RENDELL, JORDAN and VAN ANTWERPEN, Circuit Judges
(filed : April 21, 2011 )
___________
OPINION
___________
PER CURIAM
Juan Carlos Flores Zavala petitions for review of a final order of removal as well
as the denial of his motion for reconsideration. For the following reasons, we will deny
the petition for review.
Flores Zavala, a native and citizen of El Salvador, entered the United States in
2003. He was placed in removal proceedings pursuant to INA § 212(a)(6)(A)(i), as an
alien present in the United States without being admitted or paroled, or who arrived in the
United States at any time or place other than as designated by the Attorney General. He
conceded removability. Flores Zavala applied for asylum, withholding of removal, relief
under the Convention Against Torture (“CAT”), and, in the alternative, voluntary
departure.
At his hearing in November 2008, Flores Zavala testified that he fears returning to
El Salvador because he would be the target of gang activity. He testified that in 1998 he
was threatened by three gang members who wanted his watch; one held a knife to Flores
Zavala’s stomach. He also stated that in 2002, three gang members armed with guns and
knives robbed him and other passengers on a bus of their belongings, and that in 2003, he
was repeatedly asked to join a gang and was given threatening looks when he refused.
Flores Zavala also testified that one of his friends was killed by gang members in 2005,
and another was blinded in one eye by gang members in 2008.
The IJ denied Flores Zavala’s application for withholding of removal, but granted
his request for voluntary departure.1 The Board of Immigration Appeals (“BIA”)
dismissed his appeal from that order. The BIA stated that it need not address the IJ’s
adverse credibility determination because it found no error in the IJ’s determination that
1
Flores Zavala withdrew his application for asylum. He also waived his CAT
claims because he indicated he had no fear of torture in El Salvador.
2
Flores Zavala failed to demonstrate past persecution or a clear probability of persecution
on account of a protected ground. 2 The BIA also addressed Flores Zavala’s argument
that the IJ did not allow him to designate the particular social group to which he belonged
and that he would have argued that the facts in his case are similar to those in Lukwago v.
Ashcroft, 329 F.3d 157 (3d Cir. 2003), in that his particular social group is defined by
shared past experiences. The BIA concluded that, even if Flores Zavala could show
membership in such a social group, there was no indication that he was targeted or that he
has a well-founded fear of persecution on account of that particular social group.
In August 2009, Flores Zavala filed a motion for reconsideration, arguing that,
because he was not given an opportunity by the IJ to designate a particular social group,
the BIA erred in concluding that he had not shown he was a member of a particular social
group. On April 22, 2010, the BIA denied the motion for reconsideration. The BIA
again rejected Flores Zavala’s claim that the IJ did not provide him an opportunity to
designate a particular social group. The BIA further stated that Flores Zavala made the
same arguments on appeal, and that he did not cite any errors of law or fact in the BIA’s
2
The withholding of removal standard requires the applicant to show that future
persecution is “more likely than not” to occur, which is a higher burden than that required
to meet the asylum standard (well-founded fear of persecution). Lukwago v. Ashcroft,
329 F.3d 157, 182 (3d Cir. 2003).
3
July 2009 decision.3 On May 24, 2010, Flores Zavala filed a petition for review of the
BIA’s April 2010 order denying his motion to reconsider, as well as the BIA’s July 2009
order.
We have jurisdiction to review the BIA’s denial of Flores Zavala’s motion for
reconsideration pursuant to 8 U.S.C. § 1252(a). However, we lack jurisdiction to review
the BIA’s 2009 order because Flores Zavala did not file a timely petition for review of
that order. 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, 405-06 (1995)
(timely motion to reconsider does not toll running of filing period for review of
underlying removal order). Flores Zavala’s petition for review was filed on May 24,
2010, within thirty days of the BIA’s denial of his motion for reconsideration, but not
within thirty days of the BIA’s July 2009 order dismissing his appeal.
The Government contends that Flores Zavala has waived any challenge to the
BIA’s order denying his motion for reconsideration because he failed to address the
BIA’s decision in his opening brief. Although it initially may appear that Flores Zavala
is challenging only the BIA’s July 2009 order, review of his brief reveals one argument
(that he was not given an opportunity to designate a particular social group) that was
raised in his motion for reconsideration. We therefore conclude that Flores Zavala has
3
Although the BIA’s order erroneously states that Mexico is the country to which
Flores Zavala will be removed, the Government indicates that the order of remand in
effect is that issued by the IJ in November 2008, which correctly designates El Salvador
as the country to which Flores Zavala will be removed.
4
not waived review of the BIA’s order denying the motion for reconsideration.4
We review the BIA’s denial of a motion for reconsideration for abuse of
discretion. Borges v. Gonzales, 402 F.3d 398, 404 (3d Cir. 2005). We will not disturb
the BIA’s decision unless it is “arbitrary, irrational, or contrary to law.” Id. (internal
citation omitted).
Upon review, we conclude that the BIA did not abuse its discretion in denying
Flores Zavala’s motion for reconsideration. Flores Zavala did not specify an error of law
or fact in his motion; instead, he repeated arguments advanced in his appeal. See 8
C.F.R. § 1003.2(b)(1); Ahmed v. Ashcroft, 388 F.3d 247, 249, 251 (7th Cir. 2004). The
BIA noted that it had rejected on appeal Flores Zavala’s argument premised upon the
alleged failure to provide him an opportunity to argue that his case is similar to Lukwago
v. Ashcroft, in that his particular social group is based on shared past experiences. The
BIA’s denial of Flores Zavala’s motion for reconsideration was not arbitrary, irrational,
or contrary to law.
Accordingly, we will deny the petition for review.
4
We cannot consider his other two arguments, as they pertain solely to the July
2009 order, over which we lack jurisdiction.
5