Quintero-Valencia v. Atty Gen USA , 169 F. App'x 694 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
2-22-2006
Quintero-Valencia v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-2000
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NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Case No: 05-2000
SANDRA QUINTERO-VALENCIA;
JOHN LOPEZ-QUINTERO,
Petitioners
v.
ATTORNEY GENERAL OF
THE UNITED STATES,
Respondent
On Petition for Review of a Final Order
of the Board of Immigration Appeals
BIA Nos. A79 659 564 & A79 659 565
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
January 26, 2006
Before: RENDELL and SMITH, Circuit Judges,
and IRENAS, District Judge*
(Filed February 22, 2006)
OPINION OF THE COURT
SMITH, Circuit Judge.
Sandra Quintero Valencia, individually and on behalf of her son, John Lopez
*
The Honorable Joseph E. Irenas, Senior District Judge for the District of New Jersey,
sitting by designation.
Quintero, petitions for review of the decision by the Board of Immigration Appeals
(“BIA”) denying her motion for reconsideration. Valencia’s motion requested that the
BIA reconsider its affirmance of the denial by the Immigration Judge (“IJ”) of her
application for asylum, withholding of removal, and relief under the Convention Against
Torture (“CAT”). For the reasons that follow, we will deny Valencia’s petition for
review.
I.
Valencia and her son are natives and citizens of Colombia. She entered the United
States in July of 2001, and filed an application in November of 2001 seeking political
asylum, withholding of removal, and relief under the CAT. According to her application,
Valencia lived in Medellin in 1999 with her son and her boyfriend, Julian Andres Lopez,
who owned and operated a grocery store. A neighborhood militia extorted money from
Andres on a regular basis. Andres objected to the demands for money and complained to
his friend, Juan Carlos, who encouraged Andres to join the paramilitary forces. Andres
declined the invitation. After Juan Carlos was killed in January of 2001, Andres was
abducted by the militia, beaten, and interrogated regarding whether he belonged to the
paramilitary forces. Andres denied any association with the paramilitary forces, and was
subsequently released.
Thereafter, Andres and Valencia, together with her son, moved from Medellin to
Manizales. Valencia alleged that the militia followed them to Manizales. To escape the
militia, Andres, Valencia, and her son traveled to Bogota, where they were able to obtain
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fake Spanish passports. From Bogota, they traveled to Venezuela. Eventually, Valencia,
her son, and Andres boarded a flight and arrived in Atlanta, Georgia.
Valencia’s testimony, however, differed from her application. At her hearing
before the IJ, she testified that in February of 2001, Andres refused to pay the militia as
they demanded. Thereafter, the militiamen came to the store looking for Andres, hit her,
and seized Andres when he returned later that day. Based on Valencia’s description of
the events, the IJ concluded that Andres’s treatment was not based on any suspected
affiliation with the paramilitary forces, but was due to his refusal to comply with the
extortion demand by the neighborhood militia. In addition, the IJ explained that there
was no evidence to support the fact that Juan Carlos, Andres’s friend, was a member of
the paramilitary or that he had paramilitary sympathies.
After noting several other inconsistencies in Valencia’s claim, the IJ denied her
application for asylum, withholding of removal, and relief under the CAT. The BIA
affirmed, without opinion, the IJ’s decision on May 28, 2004. Valencia did not file a
petition for review of that decision. Instead, she filed a timely motion for reconsideration
on June 28, 2004, arguing that the record supported her claim of political persecution
because she had met her burden by showing that the motive for her mistreatment was, in
part, based on an imputed political opinion. She also challenged the IJ’s adverse
credibility finding. The BIA rejected her challenge to the adverse credibility finding,
noting that the IJ’s decision was supported by the record and that Valencia had failed to
provide convincing explanations for the discrepancies and omissions. It also rejected her
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assertion that the extortion and the mistreatment she and Andres sustained were based in
part on an actual or imputed political opinion.
This timely petition for review of the BIA’s denial of Valencia’s motion for
reconsideration followed. The BIA had jurisdiction over Valencia’s motion to reconsider
pursuant to 8 C.F.R. § 1003.2. We have appellate jurisdiction over the BIA’s denial of
the motion for reconsideration because it is a final order of removal for purposes of 8
U.S.C. § 1252. Sevoian v. Ashcroft, 290 F.3d 166, 171 (3d Cir. 2002).
A motion for reconsideration must “specify the errors of law or fact in the previous
order and shall be supported by pertinent authority.” 8 U.S.C. § 1229a(c)(6)(C); 8 C.F.R.
§ 1003.2(b)(1). Regulation 1003.2(a) provides that the “decision to grant or deny a
motion to . . . reconsider is within the discretion of the Board.” 8 C.F.R. § 1003.2(a).
Accordingly, we review to determine if the BIA abused its discretion. “Discretionary
decisions of the BIA will not be disturbed unless they are found to be ‘arbitrary, irrational
or contrary to law.’” Tipu v. I.N.S., 20 F.3d 580, 582 (3d Cir. 1994) (quoting Chung v.
I.N.S., 602 F.2d 608, 612 (3d Cir. 1979)).
Valencia’s motion for reconsideration asserted that the IJ erred by not crediting her
testimony because the inconsistencies he identified were minor and because he failed to
accord more weight to certain aspects of her testimony. The BIA reviewed the record and
concluded that it supported the IJ’s adverse credibility finding. In light of the record
support for the adverse credibility determination, and the fact that the BIA may not
disturb the factual findings of an IJ unless they are clearly erroneous, see 8 C.F.R. §
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1003.1(d)(3)(i), we cannot conclude that the BIA’s refusal to reconsider this factual
aspect of Valencia’s claim was an abuse of discretion. Nor do we find any abuse of
discretion in rejecting Valencia’s legal argument that she established a mixed motive
claim of political persecution. The BIA considered her theory, but was not persuaded that
there was sufficient supporting evidence.
We note that in arguing that the BIA abused its discretion in denying her motion
for reconsideration, Valencia also asserted that the BIA’s decision deprived her of her
right to due process. This claim is without merit. Valencia was afforded an opportunity
to be heard at a meaningful time and in a meaningful manner. See Abdulai v. Ashcroft,
239 F.3d 542, 549 (3d Cir. 2001) (observing that the fundamental requirement of due
process is that the individual be afforded an opportunity to be heard) (quoting Mathews v.
Eldridge, 424 U.S. 319, 349 (1976)).
We will deny Valencia’s petition for review.
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