          5RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                           2       Castellano-Chacon v. INS                        No. 02-3273
        ELECTRONIC CITATION: 2003 FED App. 0293P (6th Cir.)
                    File Name: 03a0293p.06                                                         _________________
                                                                                                         COUNSEL
UNITED STATES COURT OF APPEALS
                                                                             ARGUED: Richard R. Renner, TATE & RENNER, Dover,
                   FOR THE SIXTH CIRCUIT                                     Ohio, for Petitioner. Linda S. Wernery, UNITED STATES
                     _________________                                       DEPARTM E N T OF J U S T I C E , OFFI CE OF
                                                                             IMMIGRATION LITIGATION, Washington, D.C., for
 ROLANDO AUGUSTINE             X                                             Respondent. ON BRIEF: Richard R. Renner, TATE &
 CASTELLANO-CHACON,             -                                            RENNER, Dover, Ohio, for Petitioner. Edward C. Durant,
                                                                             John C. Cunningham, UNITED STATES DEPARTMENT
                  Petitioner, -                                              OF JUSTICE, OFFICE OF IMMIGRATION LITIGATION,
                                -  No. 02-3273
                                -                                            Washington, D.C., for Respondent.
          v.                     >
                                ,                                              BOGGS, J., delivered the opinion of the court, in which
                                -                                            GILMAN, J., joined. DOWD, D. J. (p. 32), delivered a
 IMMIGRATION AND                -                                            separate opinion dissenting in part.
 NATURALIZATION SERVICE,        -
                 Respondent. -                                                                     _________________
                                -
                               N                                                                       OPINION
   On Appeal from the Board of Immigration Appeals.                                                _________________
                  No. A78 390 991.
                                                                               BOGGS, Circuit Judge. Rolando Augustine Castellano-
                      Argued: June 19, 2003                                  Chacon (referred to as “Castellano” in Petitioner’s Brief)
                                                                             petitions for review of a decision rendered by the Board of
             Decided and Filed: August 18, 2003                              Immigration Appeals (BIA) ordering his deportation after
                                                                             denying his application for asylum, application for
    Before: BOGGS and GILMAN, Circuit Judges; and                            withholding of removal under the Immigration and
               DOWD, District Judge.*                                        Nationality Act (INA), and request for withholding of
                                                                             removal pursuant to the legislation implementing Article 3 of
                                                                             the Convention Against Torture.1 Castellano contends that
                                                                             the BIA did not properly consider his claim, which is founded


                                                                                 1
                                                                                   United Nations Convention Against T orture and O ther Cruel,
                                                                             Inhuman or Degrading T reatment or P unishm ent, open ed for signa ture
    *
                                                                             Feb. 4, 1985, G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51, at 197, U.N.
     The Ho norable D avid D . Dowd, Jr., United States District Judge for   Doc. A/RES/39/708 (1984), reprinted in 23 I.L.M. 1027 (1984), modified
the Northern District of Ohio, sitting by designation.                       in 24 I.L.M. 535 (19 85).

                                    1
No. 02-3273                  Castellano-Chacon v. INS         3   4      Castellano-Chacon v. INS                     No. 02-3273

on a fear of persecution should he return to Honduras, as a           we drink, dance, and find girls. On my left shoulder, I
result of his former membership in a street gang. Castellano          have a cross. On my left arm, I have “XIII”, Roman
additionally appeals the BIA’s decision on two procedural             numerals for 13. On my back, I have a tattoo that says
grounds. First, Castellano claims that he was effectively             “sureno”, to means [sic] that I come from the South. On
denied a fair hearing in violation of his due process rights          the ring and middle fingers of my right hand, I have
because his counsel was not allowed to make an opening and            tattoos of “N” and “Y” to show I was from New York.
closing statement at his removal hearing. Second, Castellano          On the index, middle and ring fingers of my left hand, I
claims that the BIA erred in not ruling on his motion to              have tattoos of “H”, “L” and “S”. The H means I was
correct the transcript of his immigration hearing. For the            from Hempstead. The “L” was for “La Vida Loca”, the
reasons set forth in this opinion, we deny Castellano’s               crazy life. The “S” is for “Salvatrucha,” which
Petition for Review and affirm the BIA’s decision.                    represents the Salvadoran roots of the gang. On the back
                                                                      of my left hand, near the wrist, I have three dots. They
                              I                                       also represent the crazy life. I got the tattoos during one
                                                                      week, a few each day.
                        Background
                                                                  Castellano stated that he did not realize what he was getting
   Castellano, a native of Honduras, illegally entered the        into when he joined the gang and in July 1998, he decided to
United States in February 1992, when he was sixteen years         leave MS 13, because of the violence of gang life and the fact
old. At the age of eighteen, while living in Hempstead, New       that so many members were “going to jail for life.”
York, Castellano joined the “MS 13" gang, named after 13th        Castellano was concerned that the gang would retaliate
Street in Los Angeles, and received a number of tattoos as        against him and his family for leaving, so he moved to
part of his initiation process. In his application for asylum,    Baltimore.
Castellano described and explained the meaning of these
tattoos:                                                             After getting into a violent fight with one of his roommates
                                                                  in Baltimore, Castellano moved to North Carolina, where he
  About two months after I joined MS 13, I got tattooed.          purchased false identification papers on the black market in
  Other MS 13 members did the tattoos. I have a 13 on my          order to take a job. After a brief stint in jail in New York in
  chin. This signifies my membership in MS 13. The                1999, Castellano returned to North Carolina and then moved
  three dots below the corner of my right eye signify the         to Ohio. In April 2001, Castellano got a job with a nursery in
  crazy life. The tear drop below the corner of my left eye       Berlin Heights, Ohio, for which he needed a car so that he
  signifies the memory of a friend (called “El Mago”) who         could get back and forth to work. However, when Castellano
  was killed by a rival gang. On my chest, I have tattoos         applied for the title, using the identification papers that he had
  for “M”, “S”, “Honduras”, and “13". These mean that I           purchased in North Carolina, he was arrested for using false
  belonged to MS 13, and I am from Honduras. On my                identification and sentenced to a 30-day jail term.
  right arm I have “MS” in Roman letters, and “Mi Vida
  Loca” which means my crazy life. On my right shoulder,             While Castellano was in jail, he was served with a Notice
  I have tattoos of theater masks with sad and happy faces.       to Appear (NTA) on June 12, 2001, charging him with being
  To me this means that sometimes we are sad, like when           removable under section 212(a)(6)(A)(i) of the Immigration
  somebody dies, and sometimes we are happy, like when            and Nationality Act (INA), 8 U.S.C. § 1182(a)(6)(A)(i), since
No. 02-3273                  Castellano-Chacon v. INS        5    6       Castellano-Chacon v. INS                        No. 02-3273

he was “[a]n alien in the United States [who had not been]        Furthermore, when arrested, children frequently face the use
admitted or paroled.” At Castellano’s removal proceeding on       of excessive force by the State, including extra-judicial
August 3, 2001, he conceded removability on the basis of the      executions. For example, Casa Alianza2 reported a rapid rise
allegations included in the NTA, but sought asylum, based on      in extrajudicial murders since 1998, including the killing of
a “change of country conditions.” Castellano claimed that         more than 820 “gang youth and street children” during the
since he had left Honduras, the conditions in his country had     period from January 1998 to June 2001. CODEH, the
changed to the extent that people with gang tattoos were now      Honduran Committee for the Defense of Human Rights,
being persecuted. Castellano admitted that he had been in the     reported a number of “execution-style” shootings of juvenile
United States for at least nine years and had not, until now,     delinquents, and Time magazine, along with Casa Alianza,
requested asylum because he had only recently learned about       reported on the orchestration of, or at least reckless disregard
the extrajudicial executions of gang members in Honduras.         for, gang on gang violence within the Honduran prison
                                                                  system. The State Department’s 2000 report on human rights
   On September 28, 2001, a hearing was held on Castellano’s      practices in Honduras, released by the Bureau of Democracy,
application for asylum. Castellano first presented a statement    Human Rights, and Labor, also reported that Honduran
by expert witness Professor Jeff Stewart, which was admitted      government officials have been involved in targeting children
into evidence by the Immigration Judge (IJ). Professor            suspected of being in gangs. Finally, the Special Rapporteur
Stewart’s statement essentially described the deteriorating       of the United Nations Commission on Human Rights, Asma
conditions in Honduras since “Hurricane Mitch” devastated         Jahangir, reported after visiting Honduras in the summer of
the country in 1998. The professor explained that the             2001 that the Honduran media had contributed to the problem
economic consequences of this natural disaster led to a           by targeting “tattooed youth,” linking them directly to gangs
general rise in the level of violence in Honduras, and            and crime. Jahangir found the government to be involved in
subsequently a steep increase in the number of extra-judicial     at least “some” of the known extra-judicial killings of
murders committed by Honduran security forces and/or              children. In sum, there is evidence of the Honduran
paramilitary groups, specifically targeting young men with        government directly or indirectly persecuting children3
tattoos, who were assumed to be gang members involved in          suspected of being in gangs.
criminal activities. The professor testified that the targeting
of gang members is seen by those in power in Honduras as a          In response to the government’s contention that
“form of acceptable ‘social cleansing.’” Professor Stewart        Castellano’s application for asylum was untimely, Castellano
concluded that Castellano “faces the grave probability of         testified to the fact that he had not become aware of the
death at the hands of government forces due to his previous
gang affiliation and numerous tattoos.”
                                                                      2
                                                                        Casa Alianza is a non-profit organization “dedicated to the
  A number of sources were cited by Professor Stewart in          rehabilitation and defense of street children” in Guatemala, Honduras,
support of his statements regarding the targeting of gang         Mexico, and N icaragua. See About Casa Alianza at http://www.casa-
members. The general theme of these reports was that              alianza .org/E N/abou t/.
children who are assumed to be in gangs, because of tattoos           3
or for other reasons, are at grave risk of being killed or             Professor Stewart adm itted on cross-exam ination that the Casa
tortured in Honduras, either by state security forces or          Alianz a reports he cited, which focused on “gang youth,” were referring
                                                                  to people twenty-three-years old or you nger, wherea s Castellano is
vigilante groups that appear to act with impunity.                twenty-seven-years old, and no longer a “youth.”
No. 02-3273                  Castellano-Chacon v. INS          7   8    Castellano-Chacon v. INS                    No. 02-3273

developing violence in Honduras, specifically targeted at          478, 481 (1992) (stating that a refugee is defined by the INA
gang members, until May 2001 when he saw news reports on           as an alien who is unable or unwilling to return to his home
television while he was in jail. The jail in which Castellano      country “because of persecution or a well-founded fear of
was housed had cable television, and so Castellano was able        persecution on account of race, religion, nationality,
to view several Spanish news programs not available to him         membership in a particular social group, or political opinion.”
earlier. In support of Castellano’s testimony, Professor           (quoting 8 U.S.C § 1101(a)(42)(A))). The IJ additionally did
Stewart testified at the hearing and explained that it was not     “not find a claim to be made out” with respect to Castellano’s
surprising that Castellano would have been unaware of the          application for withholding of removal. Finally, the IJ, in
changed conditions in Honduras, since “Central American            denying Castellano’s application for relief pursuant to the
refugees” have virtually no access to these sorts of news          Convention Against Torture, found that although Castellano
reports “particularly concerning . . . gang violence.”             had provided evidence of “general violence,” he had not
Nevertheless, on cross-examination, Castellano admitted that       provided sufficient evidence to demonstrate that he would,
he had been afraid of deportation and subsequent prosecution       “more likely than not,” be at risk of being tortured if he
as early as 1998 when he avoided the police after getting into     returned to Honduras. 8 C.F.R. §§ 208.16-18 (2001).
a fight with his roommate in Baltimore. In relevant part, the
following exchange took place between the government                  On February 22, 2002, the Board of Immigration Appeals
lawyer and Castellano:                                             (BIA) affirmed the IJ’s decision. Specifically, the BIA noted
                                                                   with respect to Castellano’s application for asylum, that he
  Q: On page 4 of your supplemental application, Item 11,          had not “provide[d] an adequate basis to excuse his failure to
  as you talk about getting into a fight with a man where          file the application [on time],” and explicitly agreed with the
  you hit his door with a knife and then you say I was             IJ’s conclusion that Castellano had “failed to establish a
  afraid that if I went to the police to explain, they would       nexus between any mistreatment he may suffer and one of the
  deport me.                                                       protected grounds under the Act,” thereby independently
  A: It’s true. I was afraid, yes.                                 disposing of both his application for asylum and his
  Q: Were you afraid of gangs then too?                            application for withholding of removal. Finally, the BIA
  A: Yes, because I didn’t want to go back there because           agreed with the IJ’s denial of Castellano’s claim under the
  they would kill me.                                              Convention Against Torture, since “general conditions of
  Q: So you were afraid of gangs in ‘98 then?                      violence and gross human rights violations are not sufficient
  A: I think about that. I just fought with that guy, but I        ground[s] for determining that a particular person would be
  was afraid that they were going to deport me, yes.               subjected to torture.” Castellano was subsequently removed
                                                                   to Honduras in April 2002.
  On October 10, 2001, the IJ denied Castellano’s application
for asylum, his application for withholding of removal, and                                      II
his application for relief pursuant to the Convention Against
Torture. The IJ found that Castellano’s application for                               Application for Asylum
asylum was time barred and that in any case Castellano had
not demonstrated the requisite criteria for being a refugee as       Section 208(a)(2)(B) of the INA, 8 U.S.C. § 1158(a)(2)(B),
defined in Section 101(a)(42)(A) of the INA, 8 U.S.C.              requires aliens to apply for asylum within one year of their
§ 1101(a)(42)(A), and reiterated in INS v. Zacarias, 502 U.S.      arrival in the United States, but allows an untimely
No. 02-3273                         Castellano-Chacon v. INS                9    10    Castellano-Chacon v. INS                     No. 02-3273

application to be considered if there are changed                                         (D) Changed circumstances
circumstances materially affecting the applicant’s eligibility                            An application for asylum of an alien may be
for asylum or extraordinary circumstances that would justify                              considered . . . if the alien demonstrates to the
the delay.4 8 U.S.C. § 1158(a)(2)(D).                                                     satisfaction of the Attorney General either the
                                                                                          existence of changed circumstances which
  Castellano contends that the BIA erred in finding his                                   materially affect the applicant’s eligibility for
application to be untimely, since he filed his application                                asylum or extraordinary circumstances relating to
within one year of learning about the possibility of                                      the delay in filing an application within the period
persecution in Honduras. Before turning to the merits of his                              specified in subparagraph (B).
claim, however, we must address the threshold question of                               (3) Limitation on judicial review
whether we have jurisdiction to review the BIA’s final                                  No court shall have jurisdiction to review any
decision that Castellano’s application is untimely. The INA                             determination of the Attorney General under
states in relevant part:                                                                paragraph (2).
  § 1158 Asylum                                                                  8 U.S.C. § 1158.
  (a) Authority to apply for asylum
       (1) In general                                                              Although the Supreme Court has articulated a presumption
       Any alien who is physically present in the United                         favoring judicial review of administrative action, that
    States or who arrives in the United States, . . .                            presumption may be overcome by specific statutory language
    irrespective of such alien’s status, may apply for                           precluding review, such as the language of 8 U.S.C.
    asylum in accordance with this section or, where                             § 1158(a)(3), or “specific legislative history that is a reliable
    applicable, section 1225(b) of this title.                                   indicator of congressional intent.” Block v. Cmty. Nutrition
       (2) Exceptions                                                            Inst., 467 U.S. 340, 349 (1984). The government contends
       ...                                                                       that this court does not have jurisdiction to review
         (B) Time Limit                                                          Castellano’s claim since paragraph (3) explicitly states that a
         Subject to subparagraph (D), paragraph (1) shall                        decision taken under paragraph (2) is not reviewable by any
         not apply to an alien unless the alien demonstrates                     court, thereby overcoming the presumption in favor of
         by clear and convincing evidence that the                               judicial review.
         application has been filed within 1 year after the
         date of the alien’s arrival in the United States.                         Castellano argues in response that 8 U.S.C. § 1158(a)(3) is
         ...                                                                     “imprecise” and trumped by two other provisions of the INA,
                                                                                 included in section 242 of the INA, 8 U.S.C. § 1252, which
                                                                                 specifically provide for judicial review of decisions made
    4
      In fact, the one-year filing period com mences eithe r on the alien’s
                                                                                 under 8 U.S.C. § 1158(a), thereby producing an ambiguity
day of arrival in the U nited S tates or on April 1, 1997, whichever is later.   and creating doubt as to whether Congress did in fact intend
8 C.F.R. § 204.4(a)(2)(ii). Since Castellano entered the U nited S tates in
1992, the one-year filing period commenced for him on April 1, 1997.
However, since Castellano did not apply for asylum until 2001, he was
well outside of the o ne-year filing period established by the INA, and
therefore his application is not timely. These facts are undisputed.
No. 02-3273                        Castellano-Chacon v. INS            11     12   Castellano-Chacon v. INS                     No. 02-3273

to bar judicial review under these circumstances.5 8 U.S.C.                   any lingering ambiguities in deportation statutes in favor of
§ 1252(a)(2)(B) states in relevant part that:                                 the alien.” (citing INS v. Errico, 385 U.S. 214, 225 (1966),
                                                                              Costello v. INS, 376 U.S. 120, 128 (1964), and Fong Haw
  Notwithstanding any other provision of law, no court                        Tan v. Phelan, 333 U.S. 6, 10 (1948))).
  shall have jurisdiction to review . . . any other decision or
  action of the Attorney General the authority for which is                      Despite the various presumptions working in Castellano’s
  specified under this subchapter to be in the discretion of                  favor, these presumptions are not controlling where there is
  the Attorney General, other than the granting of relief                     no ambiguity, and there is no ambiguity if, as in this case, the
  under section 1158(a) of this title.                                        “congressional intent to preclude judicial review is ‘fairly
                                                                              discernable [from] the statutory scheme.’” Block, 467 U.S. at
(emphasis added). In addition, 8 U.S.C. § 1252(b)(4)(D)                       351 (quoting Data Processing Serv. v. Camp, 397 U.S. 150,
states that “the Attorney General’s discretionary judgment                    157 (1970)). It is not necessary to interpret 8 U.S.C. § 1252
whether to grant relief under section 1158(a) of this title shall             as providing an affirmative grant of jurisdiction in conflict
be conclusive unless manifestly contrary to the law and an                    with 8 U.S.C. § 1158(a)(3), as it can be understood to extend
abuse of discretion.” Castellano argues that these provisions                 only to decisions made pursuant to 8 U.S.C. § 1158(a)(1). In
can be seen as permitting review of all decisions made under                  other words, 8 U.S.C. § 1252(a)(2)(B) and 8 U.S.C.
1158(a), including those relating to the timeliness of an                     § 1252(b)(4)(D) are referring to 8 U.S.C. § 1158(a) generally,
application, and that the standard of review to be applied is                 which deals with the granting of asylum, whereas 8 U.S.C.
whether the BIA’s decision was “manifestly contrary to the                    § 1158(a)(3) specifically addresses 8 U.S.C. § 1158(a)(2).
law and an abuse of discretion.” Castellano, having outlined                  Moreover, such an interpretation is fully consistent with the
these two conflicting interpretations, labels the conflict an                 statutory scheme, which generally prohibits judicial review of
“ambiguity” in the statute and argues that in addition to the                 discretionary decisions taken by the Attorney General under
presumption of judicial review of administrative actions, there               the INA. See, e.g., 8 U.S.C. § 1252(a)(2)(B)(ii). Were we to
is a presumption favoring the alien when interpreting any                     accept Castellano’s argument, other specific prohibitions on
ambiguities in the language of the INA, which requires this                   judicial review relating to discretionary decisions made by the
court to resolve the question of reviewability in Castellano’s                Attorney General in other parts of the INA outside of 8
favor. See, e.g., INS v. Cardoza-Fonseca, 480 U.S. 421, 449                   U.S.C. § 1158(a), but nevertheless within this subchapter,
(1987) (restating the “longstanding principle of construing                   would be redundant, since 8 U.S.C. § 1252(a)(2)(B) precludes
                                                                              review of “any other decision or action of the Attorney
                                                                              General the authority for which is specified under this
    5
      Castellano also argues that the plain language of 8 U.S.C.              subchapter to be in the discretion of the Attorney General.”
§1158 (a)(3), only co vers ac tions of the “Attorney General” and not         See, e.g., 8 U.S.C. § 1158(b)(2)(D) (limiting judicial review
decisions of the Board of Immigration Appeals or other subo rdinate           of the Attorney General’s determinations regarding the
officials. However, the Board of Appeals acts here for the Attorney
General as his delegate, and it is to bo th the Attorney G enera l and his    inadmissibility of aliens implicated in terrorist activity).
delegates that Congress has assigned the task of making these difficult
decisions pursuant to the INA . See INS v. C ardoza-Fonseca, 480 U.S.           Although this is a question of first impression before the
421, 444 -45 (1 987 ). Congress did no t expect the Attorney G enera l to     Sixth Circuit, other circuits have addressed this issue and
exercise his discretion in suspension of deportation cases personally, and,   have unanimously concluded that the federal courts lack
under the rule-m aking authority, he can d elegate his authority. Jay v.
Boyd, 351 U.S. 345 , 351 (1956 ).
                                                                              jurisdiction to review BIA determinations on the timeliness of
No. 02-3273                      Castellano-Chacon v. INS            13    14   Castellano-Chacon v. INS                     No. 02-3273

an asylum application. See Hailu v. I.N.S., No. 02-1645, 2003              therefore is not judicially enforceable law in the United
WL 1821468 at *1 (4th Cir. Apr. 8, 2003); Tsevegmid v.                     States. See Bannerman v. Snyder, 325 F.3d 722, 724 (6th Cir.
Ashcroft, 318 F.3d 1226, 1229-30 (10th Cir. 2003); Fahim v.                2003) (citing Buell v. Mitchell, 274 F.3d 337, 372 (6th Cir.
U.S. Att’y Gen., 278 F.3d 1216, 1217-18 (11th Cir. 2002);                  2001), for the proposition that the International Covenant on
Ismailov v. Reno, 263 F.3d 851, 854-55 (8th Cir. 2001);                    Civil and Political Rights, adopted by the U.N. General
Hakeem v. INS, 273 F.3d 812, 815 (9th Cir. 2001). The                      Assembly on Dec. 19, 1966, 999 U.N.T.S. 171 and ratified by
general consensus among the circuits is that “[t]he meaning                the United States on April 2, 1992, is not judicially
of § 1158(a)(3) is clear: Congress intended to bar judicial                enforceable law since it is not self executing, and “non-self-
review of decisions made under § 1158(a)(2).” Ismailov, 263                executing agreements will not be given effect as law in the
F.3d at 855. We join our sister circuits on this point and hold            absence of necessary authority.” (quoting the Restatement
that we are barred from reviewing the BIA’s decision denying               (Third) of Foreign Relations Law § 111 (1987))). Second, the
Castellano’s application on the basis that it was untimely and             United States’ treaty obligations on this score are
must therefore affirm the BIA’s decision on this point.                    implemented in section 241(b)(3) of the INA, 8 U.S.C.
                                                                           § 1231, which deals with applications for withholding of
  As a last-ditch effort, Castellano argues in his Reply Brief             removal and does not provide a time limit.
that the government’s interpretation of the INA dealing with
the reviewability of the timeliness of an application for                                                III
asylum would result in a breach by the United States of its
obligations under the 1951 United Nations Convention                                 Application for Withholding of Removal
Relating to the Status of Refugees (the Refugee Convention).6
First, the United States is not a party to the Refugee                       Withholding of removal pursuant to section 241(b)(3) of
Convention. However, by acceding to the Refugee Protocol                   the INA, 8 U.S.C. § 1231(b)(3), corresponds to the non-
in 1968,7 the United States undertook obligations under the                refoulement obligation in Article 33 of the Refugee
Refugee Convention, since the Protocol incorporates the                    Convention, prohibiting the deportation or removal of anyone
substantive provisions of Articles 2 through 34 of the Refugee             whose life or freedom would be threatened in his or her home
Convention. Nevertheless, Castellano cannot circumvent the                 country on account of one of the same five grounds necessary
INA and make a claim under the Refugee Protocol, since it is               for asylum (race, religion, nationality, membership in a
not self-executing, INS v. Stevic, 467 U.S. 407, 428 n.22                  particular social group, or political opinion). Unlike an
(1984) (noting that the Protocol was not intended to be self-              application for asylum, however, a grant of an alien’s
executing, and serves only as a useful guide in determining                application for withholding is not a basis for adjustment to
congressional intent in enacting the Refugee Act), and                     legal permanent resident status, family members are not
                                                                           granted derivative status, and it only prohibits removal of the
                                                                           petitioner to the country of risk, but does not prohibit removal
                                                                           to a non-risk country. Furthermore, a greater quantum of
    6
     1951 United Nations Convention Relating to the Status of Refugees,    proof is required as to the likelihood of persecution in the
opened for signature July 28, 1951 , G.A. Res. 429[V], 189 U.N.T.S. 137.   country of risk in order to establish eligibility for
    7
                                                                           withholding. In other words, the courts consider the same
      United Nations Protocol relating to the Status of Refugees, opened   factors to determine eligibility for both asylum and
for signature Jan. 31, 1967, G.A. Res. 2198 [XXI], 19 U.S.T. 6223, 606
U.N.T.S., 267.
No. 02-3273                   Castellano-Chacon v. INS       15    16    Castellano-Chacon v. INS                     No. 02-3273

withholding, but in the case of withholding, a higher                viable claim nor any evidence at all that the claim relates
probability of persecution is required.                              to the respondent’s race, religion, nationality,
                                                                     membership in a particular social group or political
   The standard of review requires us to uphold the BIA’s            opinion.
determination against withholding the removal of an alien,
unless it is “manifestly contrary to the law.” Ali v. Reno, 237    This determination, explicitly referring to Castellano’s
F.3d 591, 596 (6th Cir. 2001) (citing 8 U.S.C.                     application for asylum, applies a fortiori to Castellano’s
§ 1252(b)(4)(B)and (C)). Furthermore, any administrative           eligibility for withholding of removal. Castellano argues on
findings of fact are “conclusive unless any reasonable             appeal that the IJ and the BIA, having made no adverse
adjudicator would be compelled to conclude to the contrary.”       finding regarding Castellano’s credibility, erred in denying
Ibid.                                                              his claim for withholding of removal. Castellano contends
                                                                   that he has presented sufficient evidence to establish that if he
   In order to qualify for withholding, Castellano must            returns to Honduras, he will be persecuted as a result of his
demonstrate that there is a clear probability that he would be     former membership in a gang, and that his former
subject to persecution if he were to return to Honduras,           membership in MS 13 constitutes membership in a “particular
“because of [his] race, religion, nationality, membership in a     social group” pursuant to the INA.
particular social group, or political opinion.” 8 U.S.C.
§ 1231(b)(3)(A); Mikhailevitch v. INS, 146 F.3d 384, 391 (6th              A. Membership in a particular social group
Cir. 1998) (holding that in order to qualify for withholding of
deportation, the petitioner “must demonstrate that there is a         Although membership in a particular social group has
clear probability that he would be subject to persecution”         increasingly been invoked as a basis for asylum and
were he to return to his native country). We must determine,       withholding claims, defining what constitutes such a group
therefore, 1) whether Castellano is in fact a member of a          for purposes of the INA remains elusive and inconsistent.
“particular social group” for purposes of the statute; and         The circuits that have taken a position on this issue have
2) whether Castellano has presented sufficient evidence to         adopted overlapping definitions that resemble variations on a
compel a finding that he would, more likely than not, be           common theme. The First, Third, and Seventh Circuits have
persecuted on the basis of that membership. See Stevic, 467        explicitly adopted the BIA’s approach, which defined the
U.S. at 424 (reaffirming that the “clear-probability standard”     term “particular social group” as composed of individuals
is equivalent to asking “whether it is more likely than not that   who share a “common, immutable characteristic.” Lwin v.
the alien would be subject to persecution.”).                      INS, 144 F.3d 505, 511 (7th Cir. 1998); Fatin v. INS, 12 F.3d
                                                                   1233, 1239 (3d Cir. 1993); Alvarez-Flores v. INS, 909 F.2d 1,
   The IJ found that Castellano was not a member of a              7 (1st Cir. 1990). The Ninth Circuit initially adopted a
particular social group. The BIA incorporated the IJ’s             “voluntary associational relationship” definition of a social
findings and affirmed the decision, but focused instead on the     group, under which the term implies “a collection of people
lack of a nexus between Castellano’s status and the potential      closely affiliated with each other, who are actuated by some
for persecution, stating in relevant part:                         common impulse or interest.” Sanchez-Trujillo v. INS, 801
                                                                   F.2d 1571, 1576 (9th Cir. 1986) (looking to various sources
  Overall, [Castellano] has not borne his burden to                of international law for guidance). In a more recent decision,
  establish eligibility for asylum because there is not a          the Ninth Circuit rearticulated its approach in an effort to
No. 02-3273                   Castellano-Chacon v. INS        17    18   Castellano-Chacon v. INS                    No. 02-3273

“harmoniz[e] it with [the BIA’s] immutability requirement.”         in order to gain a fuller understanding of what it means to say
Hernandez-Montiel v. INS, 225 F.3d 1084, 1093 n.6 (9th Cir.         that the members of a social group must share a “common,
2000). The court recognized that groups sharing immutable           immutable characteristic.”
characteristics, such as a familial relationship, or one’s sexual
orientation and sexual identity, would not necessarily fit            In Matter of Acosta, 19 I. & N. Dec. 211, 233 (BIA 1985),
within the Sanchez definition, with its focus on a “voluntary       the BIA held that a Salvadoran Taxi cooperative did not
associational relationship” and therefore expanded the              constitute a particular social group, even though the members
definition, holding that a “‘particular social group’ is one        were being persecuted because they refused to participate in
united by a voluntary association, including a former               work stoppages. The BIA reasoned that the characteristic of
association, or by an innate characteristic that is so              being a taxi driver was not immutable since the drivers could
fundamental to the identities or consciences of its members         change jobs and the “concept of a refugee simply does not
that members either cannot or should not be required to             guarantee an individual a right to work in the job of his
change it.” Hernandez-Montiel, 225 F.3d at 1093 (emphasis           choice.” In so doing, the BIA undertook a careful analysis of
in original). See also Safaie v. INS, 25 F.3d 636, 640 (8th Cir.    the term “particular social group” and stated in relevant part:
1994) (adopting the Ninth Circuit’s broad approach, citing
Sanchez-Trujillo, 801 F.2d at 1576, as well as Ananeh-                [W]e interpret the phrase ‘persecution on account of
Firempong v. INS, 766 F.2d 621, 626 (1st Cir. 1985) and               membership in a particular social group’ to mean
Matter of Acosta, 19 I. & N. Dec. 211, 233-34 (BIA 1985)).            persecution that is directed toward an individual who is
The Second Circuit has taken yet another approach. In                 a member of a group of persons all of whom share a
Gomez v. INS, 947 F.2d 660, 664 (2d Cir. 1991), the Second            common, immutable characteristic.              The shared
Circuit adopted the Ninth Circuit’s “voluntary associational          characteristic might be an innate one such as sex, color,
relationship” standard, but additionally noted that the               or kinship ties, or in some circumstances it might be a
members of a social group must be externally distinguishable.         shared past experience such as a former military
“Like the traits which distinguish the other four enumerated          leadership or land ownership. The particular kind of
categories – race, religion, nationality and political opinion –      group characteristic that will qualify under this
the attributes of a particular social group must be recognizable      construction remains to be determined on a case-by-case
and discrete.” Ibid. See also Saleh v. United States Dep’t of         basis. However, whatever the common characteristic
Justice, 962 F.2d 234, 240 (2d Cir. 1992).                            that defines the group, it must be one that the members of
                                                                      the group either cannot change, or should not be required
  We have not previously stated a specific test in the Sixth          to change because it is fundamental to their individual
Circuit, and in doing so now we recognize the deference due           identities or consciences . . . . By construing
the BIA’s interpretation of the INA insofar as it reflects a          ‘persecution on account of membership in a particular
judgment that is peculiarly within the BIA’s expertise. We            social group’ in this manner, we preserve the concept that
therefore join the First, Third, and Seventh Circuits in              refuge is restricted to individuals who are either unable
adopting the BIA’s definition of a “particular social group.”         by their own actions, or as a matter of conscience should
See generally Fieran v. INS, 268 F.3d 340, 344 (6th Cir.              not be required, to avoid persecution.
2001); Chevron U.S.A., Inc. v. Natural Res. Def. Council,
Inc., 467 U.S. 837, 842 (1984). Nevertheless, we return to the      Id. at 233-34.
original decision of the BIA, which established that standard,
No. 02-3273                        Castellano-Chacon v. INS             19     20    Castellano-Chacon v. INS                           No. 02-3273

  Using this standard, the BIA has recognized several social                   our own jurisprudence as well, as exemplified by the
groups, such as young women of the Tchamba-Kunsuntu tribe                      “external” approach taken by the Second Circuit in Gomez,
of northern Togo who did not undergo female genital                            but not by other circuits in the country thus far. Specifically,
mutilation as practiced by that tribe and who opposed the                      the UNHCR guidelines suggest defining a “particular social
practice, In Re Fauziya Kasinga, 21 I. & N. Dec. 357 (BIA                      group” as:
1996); members of the Marehan subclan of Somalia, who
share ties of kinship and linguistic commonalities, In Re H–,                    [A] group of persons who share a common characteristic
21 I. & N. Dec. 337 (BIA 1996); homosexuals in Cuba,                             other than their risk of being persecuted, or who are
Matter of Toboso-Alfonso, I. & N. Dec. 819 (BIA 1990); and                       perceived as a group by society. The characteristic will
former members of the national police of El Salvador, Matter                     often be one which is innate, unchangeable, or which is
of Fuentes, 19 I. & N. Dec. 658 (BIA 1988). Each of these                        otherwise fundamental to identity, conscience or the
groups share an immutable characteristic, or at least a                          exercise of one’s human rights.
fundamental characteristic that “either cannot [be] change[d],
or should not be required to [be] change[d] because it is                      Id. at ¶ 11 (emphasis added).
fundamental to [the members’] individual identities or
consciences.”                                                                     The UNHCR takes the Second Circuit’s approach, in that
                                                                               the external perception of the group can be considered as an
  Since Acosta, The Office of the United Nations High                          additional factor in the overall calculus of what makes up a
Commissioner for Refugees (UNHCR) has published                                “particular social group.” However, we recognize that the
guidelines on the definition of a “particular social group” that               UNHCR guidelines are not binding and furthermore the BIA,
deal specifically with the question of whether the definition                  to whom we owe deference, has on occasion explicitly
should be based primarily on “internal” factors, such as innate                distinguished its own interpretation of the Protocol from the
characteristics, or whether it is appropriate to consider the                  UNHCR. See, e.g., Acosta, 19 I. & N. Dec. at 228 (noting
“external” perception of the group in determining whether or                   that “to the extent that the UNHCR’s position in the
not such a group exists for purposes of the Refugee                            Handbook does not require an individual to show he is likely
Convention.      Guidelines on International Protection:                       to become a victim of persecution, we find that position to be
“Membership of a particular social group” within the context                   inconsistent with Congress’ intention and with the meaning
of Article 1A(2) of the 1951 Convention and/or its 1967                        of the protocol.”). Yet, the BIA has, since Acosta, stated that
Protocol relating to the Status of Refugees, U.N. Refugee                      for a “group to be viable for asylum purposes, we believe
Agency, U.N. Doc. HCR/GIP/02/02 (2002). This question,                         there must also be some showing of how the characteristic is
which has divided courts in various countries,8 is evident in

    8
                                                                               S.C.R. 689 , ¶ 78. W hereas the Australian High Court has held that the
      For example, the Supreme Court of Canada has defined a “particular       existence of a “particular social group” “depends, in most, perhaps all
social group” to encompass 1) groups defined by an innate or                   cases on external perceptions of the group. The notion of persecution for
unchangeable characteristic; 2) groups whose m emb ers voluntarily             reasons of membership of a particular social group implies that the group
assoc iate for reasons so fundamental to their human dignity that they         must be identifiable as a social unit.” Applicant A v. Minister for
should not be forced to forsake that association; and 3) groups associated     Immigration and Ethnic A ffairs (1997) 190 CLR 225, 264 (McH ugh J.);
by a former voluntary status, unaltera ble due to its historical permanence.   Minister for Immigration and Multicultural Affairs v. Applicant Z (2001)
Ward v. Canad a (M inister of Em ployment & Immigration), [1993] 2             116 FCR 36, ¶ 11.
No. 02-3273                  Castellano-Chacon v. INS       21    22    Castellano-Chacon v. INS                     No. 02-3273

understood in the alien’s society, such that we, in turn, may     nonpolitical crimes on the other.” Id. at 1132 (citations
understand that the potential persecutors in fact see persons     omitted). While this may be true, gang membership cannot
sharing the characteristic as warranting suppression or the       be equated to a criminal activity such as drug trafficking,
infliction of harm.” In re R-A-, 22 I. & N. Dec. 906, *11         unless that is its only purpose, and thus Bastanipour is not on
(BIA 1999) vacated by the Attorney General on January 19,         point. Furthermore, “former members of the MS-13 gang” is
2001 in light of a proposed rule published at 65 Fed. Reg.        not the social group properly at issue in this case.
76588, which has since been withdrawn. See 2003 Immigr.
Bus. News & Comment Daily 42 (March 7, 2003).                        While it is possible to conceive of the members of MS 13
                                                                  as a particular social group under the INA, sharing for
  While we refrain from incorporating into our own                example the common immutable characteristic of their past
definition of a “particular social group” the UNHCR’s             experiences together, their initiation rites, and their status as
guidance on this topic, we take note of the BIA’s recent          Spanish-speaking immigrants in the United States, when one
decision, In re R-A-, and note that this language suggests that   examines the evidence in this case, Castellano is not arguing
the BIA may be moving in the direction of recognizing that        that he will be persecuted on the basis of his membership in
the external perception of a group is a relevant factor to        MS 13. Instead, the evidence he has presented establishes, at
consider in making a determination as to whether a group fits     best, that “tattooed youth” are targeted and prosecuted. As a
within the INA’s definition of a particular social group. In      result, we can only rule in Castellano’s favor if we hold that
other words, society’s reaction to a “group” may provide          “tattooed youth” constitute a social group, which we decline
evidence in a specific case that a particular group exists, as    to do.
long as the reaction by persecutors to members of a particular
social group is not the touchstone defining the group. As the        While it is apparent that the definition of a “social group”
BIA continues to revise and evaluate its own definition of a      is a flexible one, which encompasses a wide variety of groups
particular social group, our definition may evolve in the same    who do not otherwise fall within the other categories of race,
way as the BIA’s, with the caveat that the BIA must continue      nationality, religion, or political opinion, it is also apparent
to make a reasonable interpretation of the statute, as it has     that the term cannot be without some outer limit, outside of
thus far.                                                         which tattooed youth surely falls. As a category, tattooed
                                                                  youth do not share an innate characteristic, nor a past
  The IJ in Castellano’s case relied on Bastanipour v. I.N.S.,    experience, other than having received a tattoo. Furthermore,
980 F.2d 1129 (7th Cir. 1992), in determining that his former     the concept of a refugee simply cannot guarantee an
membership in the MS 13 gang did not constitute                   individual the right to have a tattoo. Tattooed youth is
membership in a particular social group. In Bastanipour, the      overbroad and cannot be seen as constituting a collection of
Seventh Circuit held that drug traffickers do not constitute a    people closely affiliated with each other, who share a
“particular social group” for purposes of the INA. The court      “common, immutable characteristic.”                 The BIA’s
reasonably noted that the INA was “surely not intended for
the protection of members of the criminal class in this
country, merely upon a showing that a foreign country deals
with them even more harshly than we do. A contrary
conclusion would collapse the fundamental distinction
between persecution on the one hand and the prosecution of
No. 02-3273                         Castellano-Chacon v. INS             23     24   Castellano-Chacon v. INS                     No. 02-3273

determination on this issue was not manifestly contrary to the                  already, is considerably higher. Thus, even if Castellano can
law.9                                                                           prove past persecution, his case is not made. Moreover,
                                                                                Castellano’s evidence of threats does not rise to the level of
   B. Is there sufficient evidence to compel a finding that                     past persecution as defined by the INA and interpreted under
Castellano would be, more likely than not, persecuted as a                      our case law.
result of his membership in a particular social group?
                                                                                  Castellano’s evidence of past persecution consists of a
  Castellano has not presented evidence to support the                          threat he received while in prison from another inmate who
contention that he would be, more likely than not, persecuted                   was Honduran and who has since been deported to Honduras.
on the basis either of his membership in MS 13, or because of
his tattoos, since the evidence he produced at the hearing                        At the immigration hearing, Castellano testified as follows:
focused on the persecution of children who were twenty-
three-years-old or younger, and Castellano is now twenty-                         Q Have you received any specific threats?
seven-years-old. In addition, he gave no information                              A No, I haven’t received any, but - -
regarding other similarly situated gang members who have                          ...
been deported and found themselves in danger.                                     Q Did, did anybody - - when you were in jail in
                                                                                      Bedford Heights, did anybody tell you that they,
   Castellano argues that he has proven past persecution,                             they could participate in that type of action?
thereby entitling him to a presumption under 8 C.F.R.                             A One of the boys that was there, yes, from Honduras
§ 208.13(b)(1)(ii) of a well-founded fear of suffering future                         he said that they were going to deport him he saw
persecution. If Castellano were applying for asylum, and he                           the news [sic]. They were destroying, they were
had in fact proven past persecution, he would have made his                           destroying all the gang members. He got, he got
case and the burden would shift to the government to prove                            upset. He said that when he got back he was going
that his fear of suffering future persecution was not well-                           to go and do the army to destroy them. He was in
founded. See Mikhailevitch, 146 F.3d at 390. However,                                 the, in the military down there in Honduras and he
Castellano’s application for asylum is time-barred and the                            can get back in there easily. His name was Oscar
standard for an application for withholding, as mentioned                             Masariego. He was detained there too.

                                                                                Although Castellano’s Brief refers to this as a threat, it seems
    9
       The government suggests that Castellano could remove his tattoos         that not even Castellano, when testifying to the event at his
and we sure ly agree that if possible, this would dispose of the case.          hearing, viewed it as a threat. Castellano argues on appeal
However neither the IJ, nor the B IA, app ear to base their decision o n this   that “vagueness is often used to imply violence,” but there is
fact, and there is no evidence in the record regarding C astellano ’s ability   no indication that Masariego considered Castellano to be
to remove his tattoos. Castellano states in a footnote in his Reply Brief       among the “gang members” that he was interested in
that “[i]f respo ndent would consent to reopening the record with a new
hearing, undersigned counsel pro ffers to prove that after the Immigration
                                                                                “destroying.” Furthermore, we held in Mikhailevitch, 146
Judge’s hearing, respondent itself denied Castellano permission to attempt      F.3d at 390, that “persecution” within the meaning of the
tattoo removal at Meridia Southwest Hospital in Bedford Heights, Ohio.”         INA, “requires more than a few isolated incidents of verbal
Although this information suggests tha t the tattoo s are in fact removable,    harassment or intimidation, unaccompanied by any physical
it is unnecessary to com e to this conc lusion in o rder to affirm the BIA ’s   punishment, infliction of harm, or significant deprivation of
decision in this case.
No. 02-3273                  Castellano-Chacon v. INS       25    26   Castellano-Chacon v. INS                    No. 02-3273

liberty.” Whether or not Masariego’s comment was meant as         executing agreements will not be given effect as law in the
a threat, it does not rise to the level of “persecution” for      absence of necessary authority.” (quoting Restatement (Third)
purposes of the INA. In addition, Castellano must                 of Foreign Relations Law § 111 (1987))). The United States
demonstrate more than the existence of a generalized or           Senate, in consenting to ratify the Convention Against
random possibility of persecution in his native country on        Torture, attached a proviso that articles 1-16 are not self-
account of the fact that he has tattoos, in order to succeed in   executing, see 136 Cong. Rec. S17486-01, S17492 (1990).
his application for withholding. See Singh v. INS, 134 F.3d       Congress then passed the Foreign Affairs Reform and
962, 967 (9th Cir. 1998) (holding that a petitioner “must show    Restructuring Act (FARRA), which instructed appropriate
that [he] is at particular risk – that [his] predicatment is      agencies to implement the obligations of the United States
appreciably different from the dangers faced by [his] fellow      under Article 3 of the Convention, see Pub. L. No. 105-277,
citizens” (quoting Kotasz v. INS, 31 F.3d 847, 852 (9th Cir.      § 2242(b), 112 Stat. 2681. The INS and the Executive Office
1994))).                                                          for Immigration Review, following the dictates of FARRA,
                                                                  have since promulgated regulations implementing our
  In sum, even if we view Castellano’s and Stewart’s              obligations under the Convention Against Torture, which
testimony as wholly credible, the evidence presented does not     constitute the appropriate law under which Castellano’s claim
compel a finding that Castellano would be subject to              can be made.
persecution on account of his membership in a particular
social group. First, Castellano’s evidence only suggests that       8 C.F.R. § 208.16(c) articulates the conditions under which
young people with tattoos are targeted, and the group of          an alien may be found eligible for the withholding of his or
“tattooed youth” is not a social group for purposes of the        her removal as a result of the probability of being subjected
INA. Second, Castellano has not effectively demonstrated          to torture in the removal country. The regulation states in
that he is in fact a member of the group being targeted in        relevant part that:
Honduras, in light of his age. We therefore affirm the BIA’s
denial of Castellano’s application for withholding of his           (4) In considering an application for withholding of
removal.                                                            removal under the Convention Against Torture, the
                                                                    immigration judge shall first determine whether the alien
                              IV                                    is more likely than not to be tortured in the country of
                                                                    removal. If the immigration judge determines that the
                Convention Against Torture                          alien is more likely than not to be tortured in the country
                                                                    of removal, the alien is entitled to protection under the
  Castellano appeals the BIA’s denial of his request for            Convention Against Torture. Protection under the
withholding of removal under Article 3 of the Convention            Convention Against Torture will be granted either in the
Against Torture. In fact, the Convention Against Torture            form of withholding of removal or in the form of deferral
does not provide an independent basis for challenging               of removal.
removal because its provisions are not self-executing, and
therefore not judicially enforceable law in the United States.    8 C.F.R. § 208.16(c)(4).
See Bannerman, 325 F.3d at 724 (citing Buell, 274 F.3d at
372, in which the court stated that a treaty is not judicially      Perhaps the most important difference between an
enforceable law since it is not self executing, and “non-self-    application for withholding of removal pursuant to section
No. 02-3273                   Castellano-Chacon v. INS       27    28   Castellano-Chacon v. INS                    No. 02-3273

241(b)(3) of the INA, and making a claim under the                 than not, be tortured. Presumably, the government would also
legislation implementing the Convention Against Torture, is        argue that Castellano lacked figures on the number of those
that in order to succeed pursuant to the Convention Against        deported with similar tattoos who had been tortured, but the
Torture, it is not necessary to link the harm faced with any of    point is well taken. Castellano attempted to make his case by
the five protected grounds enumerated in relation to               showing that a person in Honduras with tattoos is, more likely
applications for asylum and withholding: race, religion,           than not, tortured by the government. If Castellano had
nationality, membership in a particular social group, or           presented specific evidence in support of the contention that
political opinion. Instead, 8 C.F.R. § 208.16(c)(4) focuses on     the majority of persons similarly situated in terms of gang
the particularized threat of torture, rather than any other form   status or tattoos were subject to torture, he might have made
of persecution, should the alien return to the country at issue,   his case. However, Castellano’s evidence described the
although the torture must be inflicted, instigated, consented      targeting of young gang members, generally twenty-three-
to, or acquiesced in, by state actors. It is therefore possible    years-old or younger, who are not similarly situated since
for Castellano to succeed in his claim pursuant to the             Castellano is now twenty-seven-years-old. Furthermore,
Convention Against Torture, even though we have held that          Castellano did not present specific evidence as to the
he is not part of a particular social group being targeted.        likelihood of torture under these circumstances. Castellano
                                                                   did not, therefore, succeed in demonstrating that it was more
   This court applies the same standard of review when             likely than not that he would be tortured upon returning to
dealing with claims under 8 C.F.R. § 208(c) pursuant to the        Honduras.
Convention Against Torture as it does when reviewing claims
under 8 U.S.C. § 1231(b)(3). They are both decisions on                                          V
whether an alien’s removal must be withheld and are subject
to 8 U.S.C. § 1252(b)(4). We are, therefore, to uphold the                                 Due Process
BIA’s determination against withholding the removal of an
alien, unless it is “manifestly contrary to the law.” Ali v.         According to Castellano, during the immigration hearing
Reno, 237 F.3d 591, 596 (6th Cir. 2001) (citing 8 U.S.C.           the IJ “announced his desire to complete the hearing
§ 1252(b)(4)(B)and (C)). And all administrative findings of        expeditiously, and accordingly [did] not permit [his] counsel
fact are “conclusive unless any reasonable adjudicator would       to make opening statements nor closing arguments.” This
be compelled to conclude to the contrary.” Ibid.                   information does not appear in the transcript from the hearing,
                                                                   but Castellano alleges that this occurred where the transcript
  The burden of proof is on Castellano to establish that he        reads “off the record.” Castellano claims that by barring his
would, more likely than not, be tortured if removed to             counsel from presenting an opening statement and a closing
Honduras. 8 C.F.R. § 208.16(c)(3). Castellano claims that he       argument, the IJ effectively denied him a fair hearing and
has succeeded in making this case through his own testimony,       violated his due process rights. Presumably Castellano would
the reports he offered, and Professor Stewart’s testimony.         argue that this violation requires us to vacate the BIA’s
The government disagrees, arguing that since Professor             decision and remand his case for a new hearing.
Stewart did not know how many people were returned to
Honduras during 2000-01, nor the number of those people              This court reviews de novo an alleged due-process violation
who had tattoos similar to the petitioner’s, no evidence was       based on the manner in which an IJ conducts a deportation
presented to support the argument that he would, more likely       hearing, Mikhailevitch, 146 F.3d at 391, for although there is
No. 02-3273                   Castellano-Chacon v. INS       29    30    Castellano-Chacon v. INS                     No. 02-3273

no constitutional right to asylum, aliens facing removal are       counsel the opportunity to make opening and closing
entitled to due process. See Zadvydas v. Davis, 533 U.S. 678,      statements, the IJ might have exercised his broad discretion
693-94 (2001). Such due process requires that Castellano be        in controlling the duration and scope of those arguments,
afforded a full and fair hearing, although the IJ is entitled to   thereby serving both the interests of due process and
broad discretion in conducting that hearing. Mikhailevitch,        expediency. Nevertheless, since Castellano failed to identify
146 F.3d at 391.                                                   any specific prejudice resulting from the IJ’s denial, we hold
                                                                   the error to be harmless in this case.
   Castellano cites a number of cases that discuss the
importance of opening and closing arguments in criminal              Castellano contends that barring his counsel’s opening and
trials. See Herring v. New York, 422 U.S. 853 (1975)               closing arguments prejudiced his trial in that neither
(holding that a New York statute conferring upon judges in         Castellano nor his counsel had “an opportunity to present his
nonjury criminal trials the power to deny counsel any              case in a concise narrative form,” nor an opportunity “to
opportunity to make summation of the evidence before the           argue the law,” and “Castellano never had a chance to hear his
rendition of judgment, was unconstitutional as applied to          chosen advocate plea [sic] for his life, human-to-human.”
defendant, since it denied the defendant the constitutional        Castellano’s Reply Brief at 15. However, these are general
right to assistance of counsel); United States v. Stanfield, 521   statements that fail to identify any specific prejudice resulting
F.2d 1192 (9th Cir. 1975) (holding that the trial court’s          from the IJ’s procedure.
decision to give an opening statement to the jury instead of
permitting each side to make an opening statement, required                                      VI
reversal, since it created prejudice by obscuring the correct
standard for jury consideration of evidence in a criminal                            Corrections to the Record
case); United States v. Hershenow, 680 F.2d 847 (1st Cir.
1982) (holding that the trial court erred in refusing to allow       Castellano argues on appeal that the BIA erred in failing to
the defendant in a criminal case to make opening statements        correct errors in the record, pointed out by Castellano in a
to the jury; however, since there was no prejudice, the error      motion to correct the transcript. Despite the fact that the
was harmless).                                                     corrections were not disputed by the Attorney General, the
                                                                   BIA ruled on the merits of the appeal, without ruling on the
   There is no question that opening and closing arguments         motion to correct the transcript. Castellano cites no law in
are critically important in sharpening and clarifying issues for   support of his contention that the BIA is in error, and does not
resolution in our adversary system. Although they may be of        state the legal basis for our jurisdiction to review this
greater importance where a jury is involved, they still serve a    question. Furthermore, Castellano does not identify any
purpose in a bench trial and, given no other excuse than           prejudice resulting from these omissions and corrections to
general expediency, we agree with Castellano that the IJ in        the transcript.
this case did in fact err. While we recognize the practical
pressures that come to bear on our administrative courts             Presumably we have jurisdiction to review the BIA’s ruling
dealing with immigration issues, we also wish to encourage         on this motion to correct the transcript under 8 U.S.C.
the greatest respect for petitioners who appear before them        § 1252(b)(9), which deals with the consolidation of questions
and to ensure that every opportunity for a full and fair hearing   for judicial review, when reviewing a final order of removal.
is afforded to them. Instead of entirely denying Castellano’s      However, in this case the BIA has not yet ruled on
No. 02-3273                  Castellano-Chacon v. INS       31    32   Castellano-Chacon v. INS                     No. 02-3273

Castellano’s motion and there is no indication in the record as                          _____________
to whether they will in the future, so that the time for review
may not yet be ripe. Moreover, even if we have jurisdiction                                DISSENT
and the issue is ripe, given the fact that the corrections are                           _____________
mostly typographical, and the only substantive correction to
be made is the addition of the IJ’s ruling that barred               DAVID D. DOWD, JR., District Judge, dissenting in part.
Castellano’s counsel from making opening and closing              I have no dispute with most of the majority’s opinion.
arguments, there does not appear to be any prejudice resulting    However, I must, respectfully, dissent from the decision to the
from the BIA’s lack of decision on the motion to correct the      extent it holds to be harmless the denial of an opportunity to
transcript, rendering any error harmless.                         make a closing argument. Although such error might be
                                                                  harmless with respect to an opening statement, in my view,
                             VII                                  where counsel requests a closing argument, due process, even
                                                                  in the context of INS proceedings, requires that the request be
  For the foregoing reasons, we AFFIRM the BIA’s ruling,          granted and failure to do so is so prejudicial that it should be
which denied Castellano’s application for asylum, for             considered prejudice per se. I would remand this case for
withholding of removal, and his claim pursuant to the             review by a different immigration judge.
legislation implementing the Convention Against Torture.
