                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-23-2007

Hrinakova v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2795




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DLD-176                                                    NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                             ________________

                                   No. 06-2795
                                ________________

                             ADRIANA HRINAKOVA,

                                              Petitioner

                                         v.

                            ATTORNEY GENERAL OF
                             THE UNITED STATES,

                                          Respondent

                                ________________

                           On Petition for Review of an
                     Order of the Board of Immigration Appeals
                            (Agency No. A72 378 263)
                                ________________

 Submitted For Possible Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                 March 29, 2007

              Before: BARRY, AMBRO and FISHER, Circuit Judges

                              (Filed April 23, 2007 )

                                ________________

                                    OPINION
                                ________________

PER CURIAM

     Adriana Hrinakova, a native of what was then Czechoslovakia and now a citizen of
Slovakia, entered the United States on July 5, 1993. In 1994, she applied for asylum. On

February 12, 2002, Hrinakova was charged as removable for overstaying her admission

period. Hrinakova conceded removability and applied for asylum, withholding of

removal, and relief under the Convention Against Torture. Hrinakova argued that she had

been persecuted in Czechoslovakia because her father would not join the Communist

Party. When her counsel was sick the day of her hearing, the IJ denied a continuance and

Hrinakova proceeded without counsel. The IJ denied relief and ordered Hrinakova

removed to Slovakia. The BIA remanded the case to be heard by a new IJ. After another

hearing, the new IJ also denied relief and ordered Hrinakova removed to Slovakia. The

BIA affirmed without an opinion. Through counsel, Hrinakova filed a timely petition for

review. After Hrinakova filed her opening brief, the government filed a motion for

summary affirmance.1 Hrinakova has filed a response.

       We have jurisdiction under 8 U.S.C. § 1252. Where the BIA affirms the IJ’s

decision without opinion, we review the decision of the IJ as if it were the decision of the

BIA. Ghebrehiwot v. Attorney General, 467 F.3d 344, 350 (3d Cir. 2006). We review

the BIA’s factual determinations under the substantial evidence standard. Dia v.

Ashcroft, 353 F.3d 228, 249 (3d Cir. 2003)(en banc). The Board’s findings should be

affirmed unless “any reasonable adjudicator would be compelled to conclude to the

contrary.” 8 U.S.C. § 1252(b)(4)(B).



   1
     We will construe this motion as requesting that we summarily deny the petition for
review.

                                              2
       At her hearing in January 2005, Hrinakova testified that she had been chased by

two men on three occasions. In 1986, when she was twelve, they chased her, and she

tripped and broke her nose. In 1988, these same men grabbed her and tried to force her

into a car but she managed to escape. Hrinakova stated that they screamed at her and

asked about her father. In 1991, the two men chased Hrinakova as she returned home

from school. They pushed her to the ground and seriously injured her knee. When her

parents came to her aid, the men left. She also stated that the family received harassing

phone calls over the years. She asserted that this harassment occurred because her father

refused to join the Communist Party.

       The IJ noted that Hrinakova had not submitted any corroborating affidavits from

her parents or siblings even though she was in contact with them on a regular basis. The

IJ found that even assuming Hrinakova was credible, she had not established past

persecution. He also pointed to a January 2005 Background Note which described the

downfall of the Communist regime in Czechoslovakia in 1989 and the subsequent

development of democracy in Slovakia. The IJ found that the evidence established

substantially changed country conditions.

       In her brief, Hrinakova raises the issues of (1) whether she was denied a fair

hearing; (2) whether the adverse credibility finding was supported by the record; (3)

whether the IJ’s finding that she was not eligible for asylum was correct as a matter of

law; (4) whether the IJ’s finding that she failed to meet her burden of proof is

substantially supported by the record; and (5) whether her rights to due process were

                                              3
violated when the IJ denied her the opportunity to pursue “repapering.”

       The government argues in its motion for summary action that Hrinakova failed to

address the IJ’s dispositive finding of changed country conditions in her opening brief to

this Court or before the BIA. The government is correct that even if the IJ had found

Hrinakova credible and that she had established past persecution,2 the resulting

presumption of a well-founded fear of persecution is rebutted by the IJ’s finding of

changed country conditions. 8 C.F.R. § 208.13(b)(1)(i). In her summary of argument

section, Hrinakova states that “the IJ’s holding that country conditions have changed is

not supported by the record.” Brief at 10.3 However, she does not challenge this finding

in any way.4 The IJ’s finding is supported by the January 2005 Department of State

Background Note on Slovakia. C.A.R. at 261. Hrinakova has not pointed to any

evidence which would compel a finding to the contrary.

       Hrinakova argues that she was denied a fair hearing. This argument was not raised

before the BIA. Furthermore, it is without merit. Hrinakova argues that the IJ conducted


   2
     Hrinakova contends that the adverse credibility finding is not supported by the record
and the IJ erred in finding that corroboration from her parents was needed. However, the
IJ found that even assuming Hrinakova was credible, she was not entitled to relief. Thus,
we need not reach the issue of whether the IJ’s adverse credibility finding was supported
by the record or whether the IJ erred in expecting corroboration for her claims.
   3
     If a party fails to raise an issue in her opening brief, the issue is waived. A passing
reference is not sufficient to raise an issue. Laborers’ Int’l Union of N. Am. v. Foster
Wheeler Corp., 26 F.3d 375, 398 (3d Cir. 1994).
   4
     While Hrinakova cites to the Background Note about current country conditions, this
citation is in support of her argument of potential racism in Slovakia towards her
husband, not persecution of her on account of political opinion.

                                               4
all the questioning during her hearing. However, she does not describe any testimony she

was unable to give. After questioning Hrinakova about her allegations, the IJ asked her

attorney “[a]nything I missed when I was asking her questions?” The attorney answered,

“very little.” Her attorney then asked why Hrinakova was afraid to go back to her

country. C.A.R. at 121. After the IJ asked Hrinakova a few more questions, her attorney

asked her if there was anything else that she wished to tell the IJ. Hrinakova began to talk

about her husband and children as described below. Her own citation to the record

indicates that when the IJ found one of her attorney’s questions on this issue irrelevant,

the attorney stated she had no further questions. Thus, it was her own attorney who ended

her questioning of Hrinakova. To show a violation of due process, Hrinakova must

demonstrate that she was “prevented from reasonably presenting [her] case.” Uspango v.

Ashcroft, 289 F.3d 226, 231 (3d Cir. 2002). She has not done so.

       Hrinakova argues that a remand is required to allow her to address the issue of

racial persecution based on her husband’s ethnicity. She argues that the IJ limited her

ability to present a claim that she would be persecuted because she was married to a

foreigner. When Hrinakova began to describe the potential racism in Slovakia towards

her husband and children, the IJ stated that he did not think that was relevant to an asylum

claim.5 Hrinakova never argued, as she does now, that she would be persecuted in

   5
     It appears that the IJ believed that Hrinakova was trying to make an argument in
support of cancellation of removal. C.A.R. at 123. (“The respondent is not applying for
cancellation of removal or any other application where I could consider the hardship to
the spouse or the children . . . I’m not sure that the issues that you are raising now are part
of the persecution claim.”)

                                               5
Slovakia on account of her being married to a non-Slovak. Moreover, this issue was not

raised in her brief before the BIA. Therefore, we will not review this issue. See 8 U.S.C.

§ 1252(d)(1). (“A court may review a final order of removal only if . . . the alien has

exhausted all administrative remedies available to the alien as of right.”)

       Hrinakova’s final argument is that the IJ erred in denying her the opportunity for

repapering under Section 309 of the INA so that she could apply for cancellation of

removal. However, Hrinakova is not eligible for repapering because she was not in

removal proceedings on April 1, 1997, the effective date of the Illegal Immigration

Reform and Immigrant Responsibility Act of 1996. Moreover, Hrinakova is not eligible

for cancellation of removal. Cancellation of removal for a non-permanent resident alien

is only available if the alien has lived in the United States continuously for ten years. 8

U.S.C. § 1229b(b). However, continuous residence is deemed to end when the alien is

served a notice to appear. 8 U.S.C. § 1229b(d). Here, Hrinakova entered the United

States in July 1993 and was served a notice to appear in February 2002. Thus, she has not

continuously resided in the United States for ten years and is not eligible for cancellation

of removal.

       Summary action is appropriate if there is no substantial question presented in the

appeal. See Third Circuit LAR 27.4. Because the petition presents no substantial

question, we will grant the government’s motion and summarily deny the petition for

review.




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