                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-2-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2672




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                                                                NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                       No. 05-2672


                                FAUSTO DIAZ-MUNOZ,
                                                Petitioner
                                      vs.

                *ATTORNEY GENERAL OF THE UNITED STATES,
                                          Respondent

                       *Amended per the Clerk’s Order dated 6/16/06

                                      ____________

           ON REVIEW OF A PETITION FOR REVIEW OF AN ORDER
             OF THE UNITED STATES DEPARTMENT OF JUSTICE
                    BOARD OF IMMIGRATION APPEALS
                         (BIA No. A # 13-184-675)
                              ____________

                    Submitted Under Third Circuit L.A.R. 34.1(a)
                                  July 14, 2006
                  Before: SMITH, WEIS and ROTH Circuit Judges.

                            (Filed: August 2, 2006)
                                     ____________

                                       OPINION


WEIS, Circuit Judge.

             Mr. Fausto Diaz-Munoz petitions for review of decisions by the Board of

Immigration Appeals (“BIA”) denying his application for withholding of removal and

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relief under the Convention Against Torture (“CAT”) and denying his Motion to Reopen.

In ruling on the withholding and CAT claims, the BIA adopted and affirmed the decision

of the Immigration Judge (“IJ”). We have jurisdiction under 8 U.S.C. § 1252, as

amended by the Real ID Act, which became effective May 12, 2005. Because we find

that substantial evidence in the record supports the findings of the BIA, we will deny the

petition for review.

              Petitioner was born on August 24, 1953 in the Dominican Republic. He

entered the United States in 1983, is married and has several children. He was convicted

of a federal narcotics violation in 1996 and was sentenced in the U.S. District Court for

the Eastern District of Pennsylvania to 48-months incarceration. In 1999, petitioner was

convicted for a narcotics violation in state court in Pennsylvania and received a sentence

of 36 to 72 months incarceration.

              The petitioner’s testimony before the IJ in 2004 indicated that he was from

a well established family in the Dominican Republic. He testified that he had worked in

several government jobs that he secured through the influence of his family and, in 1979,

began working as a narcotics agent for the Dominican Republic’s national police. The

United States Drug Enforcement Administration (“DEA”) asked petitioner to assist in

acquiring information about drug trafficking, particularly evidence implicating corrupt

government or military officials. Eventually, petitioner secured and provided the DEA

with evidence implicating a high ranking police officer, Colonel Perez.



                                             2
              Petitioner testified that he was called to present evidence at a televised court

martial of Colonel Perez. The proceedings gained national attention and resulted in

Colonel Perez’s imprisonment.

              After the court martial, the chief of the national police advised petitioner to

leave the country for fear that he would not be properly protected from people interested

in retaliating against him for his cooperation with the DEA. As a result, petitioner came

to the United States in 1983. He testified that, in the years since he arrived in the U.S.,

his relatives in the Dominican Republic have notified him that various unnamed

individuals had inquired about his whereabouts and threatened to physically harm him.

              Petitioner sought withholding of removal and relief under the CAT,

contending that it was more likely than not that he would be tortured if he returned to the

Dominican Republic. Petitioner testified that Colonel Perez was living in the Dominican

Republic, and, although he was no longer a government official, he nonetheless continued

to assert significant influence there. Petitioner also named two officers in the Dominican

national police who knew that he had implicated them in drug trafficking. (App. 191-92).

              Petitioner testified about systemic corruption in the Dominican Republic

and asserted that the Dominican media’s policy of publishing information about returning

deportees would alert his enemies of his arrival.

              The IJ concluded that petitioner offered no evidence to support his claim

that Colonel Perez exercised influence over the government. The IJ also ruled that

petitioner had not provided any evidence suggesting that the government would acquiesce

                                              3
in illegal, ultra vires actions taken by the two police officers. Instead, the IJ noted that the

latest information on the Dominican Republic indicated that the government had made

substantial strides to eradicate corruption, specifically that involving narcotics, including

arresting and dismissing numerous government officials. In essence, the IJ concluded

that petitioner had not proved that the Dominican government would, more likely than

not, acquiesce in illegal behavior by rogue government officials or former officials.

               The BIA affirmed, explaining that petitioner bore the burden of proving

government acquiescence in torture and he had failed to demonstrate both (1) that the

government would be aware, through actual knowledge or willful blindness, of torturous

acts; and (2) that the government would breach its legal duty to protect petitioner. The

BIA also denied the Motion to Reopen because petitioner failed to show that the evidence

he intended to introduce at a new proceeding would be material and was not available, or

could not have been discovered, previously.

              In his appeal to this Court, petitioner argues that the BIA erred in affirming

the IJ’s CAT decision because the IJ based its decision on Matter of Y-L, 23 I&N Dec.

270 (A.G. 2002). Specifically, petitioner argues that Y-L applies only in cases where the

petitioner did not testify credibly. Alternatively, petitioner argues that, if Y-L applied to

this case, the IJ failed to “genuinely” examine whether the government of the Dominican

Republic would willfully accept torturous actions directed at petitioner.

              Where the BIA adopts the findings of the IJ and also discusses the basis for

the IJ’s decision, we review both the IJ’s and the BIA’s decisions. He Chun Chen v.

                                               4
Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004). We review the BIA’s legal determinations de

novo, subject to established principles of deference. See Smriko v. Ashcroft, 387 F.3d

279, 282 (3d Cir. 2004) (citations omitted). Factual findings must be upheld if they are

“‘supported by reasonable, substantial, and probative evidence on the record considered

as a whole.’” INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992) (quoting 8 U.S.C. §

1105a(a)(4)).

                To qualify for relief under the CAT, an alien must demonstrate that it is

more likely than not that he or she would be tortured if returned to the proposed country

of removal. 8 C.F.R. § 208.16(c). The petitioner bears the burden to show that he would

be tortured, and objective evidence is required. Berishaj v. Ashcroft, 378 F.3d 314, 332

(3d Cir. 2004).

                In this case, the BIA concluded that the petitioner had not shown that the

Dominican government would be, at a minimum, willfully blind to torture by the

individuals petitioner claimed to fear.

                The following factors are helpful when determining whether torture is more

likely than not: (1) evidence of past torture inflicted on the petitioner; (2) possibility that

the petitioner could relocate within the country of removal to an area where torture is

unlikely; (3) evidence of “gross, flagrant or mass violations of human rights” in the

country of removal; and (4) other relevant country conditions. See Amanfi v. Ashcroft,

328 F.3d 719, 725 (3d Cir. 2003) (quoting 8 C.F.R. § 208.16(c)(3)).

                Petitioner testified about the people he thought would retaliate against him

                                               5
and their reasons for wanting to harm him. However, petitioner did not provide any

evidence explaining why the government would sanction or turn a blind eye toward

actions by those individuals. Petitioner had no specific evidence to refute the

respondent’s evidence showing recent improvements in the Dominican Republic’s efforts

to ferret out and punish corruption. We find no error in the BIA’s ruling.

              Petitioner contends also that the BIA erred in denying his Motion to Reopen

based on allegations that he intended to produce new evidence that consisted of several

newspaper articles from the 1980s discussing his role in prosecuting Colonel Perez.1

Petitioner contends that this evidence substantiates his claim that Colonel Perez had

completed his incarceration and was living in the Dominican Republic which would

inferentially support the claim that Colonel Perez would seek out petitioner to inflict harm

on or kill him.

              The Board denied the petitioner’s motion because petitioner failed to show

that the evidence was unavailable or undiscoverable at the time of the prior proceedings

and because the evidence was cumulative.

              We can see no error in the Board’s exercise of its discretion in ruling on this

issue. See I.N.S. v. Doherty, 502 U.S. 314, 323 (1992) (explaining that the Attorney

General has “broad discretion” to grant or deny a motion to reopen and that such motions


              1
                The IJ granted petitioner a continuance to gather the articles; however,
petitioner could not produce them in the time allotted. As a result, the IJ proceeded to
issue his opinion. While petitioner’s appeal to the BIA was pending, he secured the
information.

                                             6
are disfavored). In addition to the cumulative, non-material nature of the evidence, it was

over twenty years old and, therefore, technically “available” and “discoverable,” albeit

difficult to obtain.

               For the foregoing reasons, we will deny Mr. Diaz-Munoz’s petition for

review of the BIA’s order.




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