William Lopez-Albeno v. Attorney General United States ( 2013 )

  •                                                        NOT PRECEDENTIAL
                          FOR THE THIRD CIRCUIT
                                  No. 12-4130
                          WILLIAM LOPEZ-ALBENO,
                     On Petition for Review of an Order of the
                          Board of Immigration Appeals
                           (Agency No. A089 238 057)
                    Immigration Judge: Honorable R.K. Malloy
                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   June 19, 2013
          Before: SMITH, GREENAWAY, JR. and SHWARTZ, Circuit Judges
                          (Opinion filed: June 25, 2013)
             William Lopez-Albeno (“Lopez”) 1 petitions for review of an order of the Board of
    Immigration Appeals that dismissed his appeal of an Immigration Judge’s (“IJ”) removal
    order. We will deny the petition for review.
             Lopez, a native and citizen of Guatemala, entered the United States without
    inspection in 2001 to find work. He applied for withholding of removal and protection
    under the Convention Against Torture (“CAT”) in 2009. Lopez testified that in 2006, his
    disabled brother, then age 13, had been raped by a neighbor who was a member of a
    gang. Lopez’s mother reported the rape to the police, but then dropped the charges when
    the rapist threatened the family with death. Lopez argued that if he returned to
    Guatemala, the rapist would persecute him as a member of a particular social group; i.e.,
    his nuclear family, because Lopez had sent money to his mother to investigate the rape.
             The IJ found Lopez credible, but denied all relief except voluntary departure.
    Lopez appealed to the BIA. The BIA affirmed the IJ’s determination that Lopez had
    failed to file a timely asylum application, and that he failed to meet his burden of proof
    for withholding of removal or protection under the CAT. Lopez filed a timely petition
    for review.
             We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1). 2 In order to establish
      The Board of Immigration Appeals’ caption lists the name as “William Lopez-Alpeno.”
    However, it appears that Petitioner’s true name is Wilian Lopez Albeño. A.R. 105-06,
    254. We will follow our docket’s caption, which corrects the second surname, but
    repeats the apparent misspelling of the first name.
        We have jurisdiction to consider only issues that have been administratively exhausted.
    eligibility for withholding of removal, a petitioner must show that it is more likely than
    not that his life or freedom would be threatened if returned to his country due to a
    protected ground, such as membership in a particular social group. Kaita v. Att’y Gen.,
    522 F.3d 288
    , 296 (3d Cir. 2008). The feared persecutory acts must be committed by the
    government or forces the government is either unable or unwilling to control. Garcia v.
    Att’y Gen., 
    665 F.3d 496
    , 505 (3d Cir. 2011). We will reverse a Board decision denying
    withholding of removal only if a “reasonable fact-finder would have to conclude that the
    requisite fear of persecution existed.” Li v. Att’y Gen., 
    633 F.3d 136
    , 140 (3d Cir.
    2011). 3
           We need not reach the question of whether Lopez’s family is a legally cognizable
    particular social group, as we agree with the BIA that he has not shown a clear
    8 U.S.C. § 1252(d)(1); Castro v. Att’y Gen., 
    671 F.3d 356
    , 365 (3d Cir. 2012)
    (exhaustion requirement attaches to each particular issue raised by petitioner). The brief
    Lopez’s attorney filed with the BIA consisted of one sentence, devoid of any issues.
    A.R. 45. His notice of appeal to the BIA consists of two factual assertions and one legal
    conclusion, but does not assert any error on the part of the IJ. A.R. 60. Nonetheless,
    because the BIA considered, sua sponte, whether Lopez warranted withholding of
    removal, we have jurisdiction to consider that question. Lin v. Att’y Gen., 
    543 F.3d 114
    126 (3d Cir. 2008). Counsel’s submissions on appeal also barely meet the
    professionalism this Court expects, as reflected by his arguments that lack any basis in
    law or extensions thereof (such as urging us to apply a “reasonable child” standard to
    determine whether Lopez had established the requisite fear of persecution), and his loose
    use of facts (stating that Lopez was “forced to leave Guatemela” and was “scared out of
    his wits” when testimony shows that Lopez left for economic reasons, well before his
    brother’s rape).
      Lopez has not raised any issues regarding the untimeliness of his asylum claim or the
    denial of relief under the CAT. Chen v. Ashcroft, 
    381 F.3d 221
    , 235 (3d Cir. 2004)
    (issues not raised in opening brief waived).
    probability of being persecuted in Guatemala by a person or organization that the
    government is unwilling to control. Indeed, it appears that the government was willing to
    prosecute the rapist, but did not do so based on Lopez’s family’s request. We will deny
    the petition for review, as a reasonable fact-finder would not be compelled to conclude
    that Lopez has established the requisite fear of persecution.