Antonio Roblero-Morales v. Dana Boente , 677 F. App'x 849 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-1163
ANTONIO ROBLERO-MORALES, a/k/a Everardo Valasquez-Reyes,
a/k/a Evrardo Valasquez-Reyes, a/k/a Ebelardo Velasquez-
Reyes, a/k/a Antonio Roblero Morales,
Petitioner,
v.
DANA JAMES BOENTE, Acting Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Argued: January 24, 2017 Decided: February 3, 2017
Before MOTZ, DUNCAN, and HARRIS, Circuit Judges.
Petition for review denied by unpublished per curiam opinion.
ARGUED: Bradley Bruce Banias, BARNWELL, WHALEY, PATTERSON, AND
HELMS, Charleston, South Carolina, for Petitioner. Craig Alan
Newell, Jr., UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Respondent. ON BRIEF: Benjamin C. Mizer, Principal
Deputy Assistant Attorney General, Civil Division, Emily Anne
Radford, Assistant Director, Kohsei Ugumori, Senior Litigation
Counsel, Office of Immigration Litigation, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Antonio Roblero-Morales petitions for review of a Board of
Immigration Appeals (Board) order affirming the decision of the
Immigration Judge (IJ) to deny him relief from removal. Roblero
contends that the IJ violated Roblero’s procedural due process
rights. We deny the petition for review.
I.
On or around September 13, 2013, border patrol agents
apprehended Roblero, a citizen of Guatemala, when he attempted
to enter the United States unlawfully. The Department of
Homeland Security charged Roblero as removable, found that he
had a credible fear of persecution or torture, and issued him a
Notice to Appear. At Roblero’s initial removal hearing, he
conceded removability but sought relief from removal on the
bases of asylum, withholding of removal, and protection under
the Convention Against Torture (CAT).
After receiving a two-month continuance to find counsel,
the IJ scheduled a second hearing. At this hearing, Roblero
informed the IJ that he left Guatemala because gangs “kept
extorting [him] all the time” and, subsequently, “wanted [him]
to work for them.” After hearing this summary of Roblero’s
claim, the IJ granted him a second continuance. In doing so,
the IJ told Roblero:
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All right. Sir, I’m going to hear your case, but it’s
not a very strong case and the reason is because I
understand there’s a lot of gangs in Guatemala and
they try to extort money from people or try to recruit
people. That doesn’t provide a legal basis for you to
get asylum here in the United States. But because
you’ve already filed an asylum application I’m going
to give you a hearing.
After the IJ gave Roblero the date for the next hearing,
Roblero asked the IJ if he could “fill out some things that [he]
left out on page 5” of his asylum application. Following an
off-the-record discussion about other issues, Roblero again
asked to “complete page 5” so that it reflected his contention
that he fled Guatemala because gangs threatened to kill him.
The following discussion ensued:
MR. ROBLEO-MORALES [sic]:
When the official caught me in the desert I tried
to explain to him that I was afraid to go back to my
country, but they wouldn’t let me explain and he told
me he did not make the law.
JUDGE:
Okay. Well, sir, you filed an application for --
saying you’re afraid of the gangs because they were
extorting money from you. Right?
MR. ROBLEO-MORALES [sic]:
That is true.
JUDGE:
And is that the reason why you’re afraid to go
back?
MR. ROBLEO-MORALES [sic]:
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Yes. Because they threatened me that they were
going to kill me, so I left running away from my
house.
JUDGE:
All right. Well, sir, I’m going to hear your
case on July 31st. Okay. Do you have any questions?
MR. ROBLEO-MORALES [sic]:
No.
JUDGE:
All right. I’ll see you on July 31st.
The IJ then adjourned the hearing without acting on Roblero’s
request to “complete” page 5.
The IJ held Roblero’s merits hearing, as scheduled, on July
31, 2014. Roblero testified that he left his home in 2012
because of gang extortion. He testified that the gang first
charged him 100 quetzales (the Guatemalan currency), which he
paid. Next, the gang charged him 300 quetzales, and he paid
that as well. However, when the gang sought 400 quetzales,
Roblero refused. The gang members told Roblero that if he
refused to pay he would need to work for them to collect money
from other people. Instead of complying, Roblero fled. Roblero
acknowledged that while in Guatemala, gangs never harmed him,
but he testified that he knew “a lot of people who have lost
their lives for the same thing.”
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Leaving his family behind, Roblero entered Mexico in April
2013. He remained there for five months, when unknown
individuals kidnapped him. Roblero’s captors beat him and tried
to learn information about his family for extortionary purposes,
but he provided none. After a month, Roblero’s captors released
him when they found information about another captive’s family.
Roblero then fled to the United States, where border patrol
agents apprehended him.
At the conclusion of the hearing, the IJ orally denied
Roblero’s asylum application on the ground that “being extorted
by gang members in Guatemala [was] not a basis for which [he]
could grant [Roblero] asylum.” The IJ subsequently issued a
written decision further explaining his reasoning. The IJ found
Roblero credible, but denied his application due to the lack of
proof of “the requisite nexus between the alleged persecution he
perceived in Guatemala and a statutorily protected ground.” The
IJ pointed out that “merely being subject to extortion attempts
does not provide the required on account of grounds so as to be
eligible for asylum.” The IJ also denied Roblero’s other
grounds for relief.
Roblero, now with counsel, timely appealed to the Board.
He asserted that the IJ erred in not allowing him to amend his
asylum application, and that the IJ improperly prejudged his
case. Roblero explained that, if permitted to do so, he would
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have testified to “his status as a taxi driver” and “his direct
political actions against the criminal organizations and corrupt
government supporters.”
On January 19, 2016, the Board dismissed Roblero’s appeal.
The Board held that the IJ did not violate Roblero’s due process
rights because even though Roblero was not permitted to amend
his asylum application, “he was provided an opportunity to
present his claim during the hearing and has shown no prejudice
resulting from the Immigration Judge’s actions.” Roblero timely
filed this Petition for Review of the Board’s Order.
II.
Roblero’s petition contends only that the IJ’s denial of
asylum violated his procedural due process rights. “We review
due process claims alleging procedural failings in the
immigration context de novo.” Singh v. Holder, 699 F.3d 321,
335 (4th Cir. 2012). Because the Board’s order combined its own
reasoning with the IJ’s, we review both orders. Martinez v.
Holder, 740 F.3d 902, 908 n.1 (4th Cir. 2014).
To prevail, Roblero must prove both that the IJ’s actions
rendered the proceedings “fundamentally unfair,” and that the
defect the IJ introduced into the proceedings “prejudiced the
outcome of the case.” Anim v. Mukasey, 535 F.3d 243, 256 (4th
Cir. 2008). To show prejudice, Roblero must demonstrate that
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“the defect, in retrospect in [this] specific case, was ‘likely
to impact the results of the proceeding.’” Id. (quoting Rusu v.
INS, 296 F.3d 316, 320-21 (4th Cir. 2002)). Roblero maintains
that the IJ improperly prevented him from amending his asylum
application to specify his grounds for removal and that the IJ
prejudged his case. The Government argues that, assuming the IJ
erred, Roblero cannot demonstrate prejudice. We consider each
of Roblero’s arguments in turn, recognizing that due process
mandates only “a meaningful opportunity to present [a] claim,” a
requirement falling short of an “obligation to ensure . . . a
meaningful presentation.” Rusu, 296 F.3d at 324.
A.
Roblero contends that the IJ’s refusal to allow him to
amend his application prejudiced him because it precluded the
development of a full record. This failure, Roblero claims,
prevented him from explaining the nexus between his persecution
and his membership in a protected class.
The IJ, however, asked several questions that gave Roblero
an opportunity to provide a further explanation of his claim.
These open-ended inquiries included questions such as “Why did
you leave Guatemala the last time?”; “What was the reason you
left your home country in 2012?”; “Sir, while we were off the
record you indicated you wanted to say something. What is it
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you wanted to tell the Court?”; and “Anything else you want to
tell me?”
These questions gave Roblero the opportunity to explain the
full nature of his claim. In response to them, Roblero never
specified the protected group to which he claimed to be a
member. The record contains no indication that the IJ prevented
Roblero from providing testimony beyond the content of his
application, or that Roblero refrained from offering any
testimony out of a fear that the IJ would not allow it.
Given this record, Roblero cannot show prejudice. Not only
did the IJ offer him a chance to put into the record anything he
wished, but there is no indication that Roblero had any evidence
that would entitle him to relief. We thus have no basis on
which to hold that the IJ’s failure to permit him to amend his
asylum application prejudiced Roblero.
B.
Roblero’s contention that the IJ prejudged his case also
fails. He asserts that this prejudgment was evidenced by the
IJ’s remark that Roblero did not have a strong case and the IJ’s
assertedly preconceived notion that gangs in Guatemala
frequently try to extort and recruit individuals for money.
The record demonstrates that in fact Roblero’s case was not
a strong one and that the IJ denied Roblero’s application not
because of a belief about the ubiquity of Guatemalan gangs’
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extortion efforts, but because, as a matter of law, this motive
did not implicate Roblero’s status as a member of any protected
group. Roblero provides no authority for the position that this
legal conclusion is wrong. C.f. Zelaya v. Holder, 668 F.3d 159,
167 (4th Cir. 2012) (“In sum, the BIA’s conclusion that Zelaya’s
proposed social group of young Honduran males who refuse to join
MS-13, have notified the police of MS-13’s harassment tactics,
and have an identifiable tormentor within the gang does not
qualify as a particular social group within the INA is not
manifestly contrary to the law or an abuse of discretion.”).
Accordingly, we cannot hold that any prejudgment by the IJ
prejudiced Roblero’s case.
III.
Since Roblero cannot demonstrate that any of the IJ’s
purported errors altered the outcome of the proceedings, his due
process challenge fails. For the foregoing reasons, the
petition for review is
DENIED.
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