                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-17-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-1621




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                                                    NOT PRECEDENTIAL

             UNITED STATES COURT OF APPEALS
                  FOR THE THIRD CIRCUIT


                           No. 04-1621


                    GLORIA INES PERDOMO,

                                      Petitioner


                                 v.

        ATTORNEY GENERAL OF THE UNITED STATES,

                                      Respondent



              Petition for Review from an Order of the
                   Board of Immigration Appeals
                     (Board No. A79-318-080)


             Submitted under Third Circuit LAR34.1(a)
                        on March 11, 2005

BEFORE: SCIRICA, Chief Judge, ROTH and FUENTES, Circuit Judges,

                  (Opinion Filed: May 17, 2005)
                                        OPINION


ROTH, Circuit Judge:

       Gloria Ines Perdomo has petitioned for review of the Order of the Board of

Immigration denying her request for asylum, withholding of removal under INA

§241(b)(3), and withholding under Article 3 of the Convention Against Torture. Having

found that there was substantial evidence to support the Board’s decision, we will deny

the petition.

                                        I. FACTS

       At her administrative hearing, Perdomo testified as to the following. She is

married to Edgar Lizarazo. Prior to coming to the United States, she lived in

Bucaramanga, Colombia with her husband and two children. On November 3, 1999,

Perdomo’s husband went to Aguachica to negotiate a contract for the rental of land.

Unfortunately, her husband was kidnaped by paramilitaries sometime prior to his meeting.

After hearing the news, Perdomo went to the local authorities who were either unwilling

or unable to aid her in the search for her husband. Perdomo received numerous

anonymous phone calls subsequent to her husband’s kidnaping urging her to leave the

country. She did so, entering the United States with a B-2 visitor’s visa on May 11, 2000,

and subsequently filed an application for asylum and withholding of removal on April 17,

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2001. The case was referred to the United States Immigration Court and the immigration

judge heard Perdomo’s case on February 19, 2002.

       Following Perdomo’s testimony, the Immigration Judge (IJ) denied Perdomo’s

requests for asylum, withholding of removal, and protection under the Convention

Against Torture. Central to the judge’s finding was the fact that despite the persistent

political upheaval in Colombia, Perdomo herself had never been subject to past

persecution, nor was it likely that she would be subject to future persecution if forced to

return to her native country. Furthermore, the IJ rejected Perdomo’s claim under the

Convention Against Torture because she made no claim that the government, or someone

acting with the acquiescence of the government, will harm her if she returns to Colombia.

       After a timely appeal, the Board of Immigration Appeals dismissed Perdomo’s

appeal, finding that she did not meet “the burden of proving eligibility for asylum,

withholding of removal, or relief under the Convention Against Torture.” Furthermore,

the Board rejected Perdomo’s claim that the immigration judge demonstrated bias in her

hearing.

                 II. STANDARD OF REVIEW AND JURISDICTION

       This Court has jurisdiction of Perdomo’s appeal pursuant to § 242(a) of the

Immigration and Nationality Act (INA), 8 U.S.C. § 1252(a) to review timely filed

petitions for review of final orders of the Board. The record indicates that Perdomo’s

appeal was timely under 8 U.S.C. § 1252(b).



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       This court has plenary review when reviewing constitutional challenges to

immigration procedures. Dia v. Ashcroft, 353 F.3d 228, 238 (3d Cir. 2003) (en banc).

Accordingly, the Court reviews the decision under the substantial evidence test. Dia v.

Ashcroft, 353 F.3d 228, 238 (3d Cir. 2003) (en banc) Id. 1

       Under the substantial evidence test, the Court must ask whether “ the

determination is supported by evidence that a reasonable mind would find adequate.” Id.

at 249. To reverse the Board’s rejection of a claim for asylum or withholding of removal,

the Court must conclude that “no reasonable fact finder could make [the Board’s] finding

on the administrative record.” Id.

                                     III. DISCUSSION

       A.     Perdomo Failed to Establish Membership in a Particular Social Group

       Under this court’s longstanding interpretation, persecution on account of

membership in a particular social group means “persecution that is directed toward an

individual who is a member of a group of persons all of whom share a common,

immutable characteristic.” Matter of Acosta, 19 I&N. Dec. 211 (BIA 1985), modified on

other grounds, Matter of Mogharrabi, 19 I & N Dec. 439 (BIA 1987). While this




       1
         The government contends that Perdomo has waived any claim that the BIA abused
its discretion in denying her motion to reconsider because she limited her arguments in
her brief to a discussion of the IJ’s opinion. We decline, however, to find waiver as we
read Perdomo’s brief as sufficiently preserving the question of whether the BIA abused
its discretion by failing to reconsider its previous decision alleged to be factually and/or
legally erroneous.

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determination is made on a case-by-case basis, our analysis is guided by several factors.

Most important, the person seeking relief must demonstrate that “whatever the common

characteristic that defines the group, it must be one that the members of the group either

cannot change, or should not be required to change because it is fundamental to their

individual identities or consciences.” Id. at 233.

         Our precedent clearly illustrates that no matter the factual nuances evident in each

case, one consistent factor leading to a finding of membership in a particular social group

is that the members of the group itself, and not their relatives, are the ones facing

persecution. See Lukwago v. Ashcroft, 329 F.3d 157, 178-79 (3d Cir. 2003) (holding

group of former child soldiers escaping from involuntary servitude constitutes “particular

social group”); Amanfi v. Ashcroft, 328 F.3d 719, 727-30 (3d Cir. 2003) (imputed status

as homosexual cognizable theory of social group membership); Fatin v. INS, 12 F.3d

1233, 1241 (3d Cir. 1993) (group of Iranian women effected by country’s gender laws

constitutes “particular social group”). What distinguishes the instant case from those

discussed above is Perdomo’s inability to articulate membership in a particular social

group based on actions specifically taken against her. Rather, she seeks relief under the

“particular social group” doctrine based on her husband’s kidnaping. While we

sympathize with this tragic event, we nevertheless conclude that Perdomo has not

demonstrated a well-founded fear of persecution due to membership in a particular social

group.



                                               5
       B.     No Well-Founded Fear of Future Persecution if Returned to Colombia

       The IJ’s finding that Perdomo did not have a well-founded fear of future

persecution if returned to Colombia is supported by substantial evidence. While we

recognize that Perdomo’s native Colombia is in a state of civil war, such political unrest

does not equate to a fear of future persecution. As we stated in Fatin v. INS, “Persecution

does not encompass all treatment that our society regards as unfair, unjust, or even

unlawful or unconstitutional.” 12 F.3d at 1240. In order to demonstrate persecution, the

individual must show to a reasonable degree of certainty that “she would be singled out or

treated differently from others in her country because she possessed a characteristic a

persecutor sought to punish.” Matter of Sanchez and Escobar, 19 I & N Dec. at 284. At

her administrative hearing, Perdomo failed to articulate why she was a target of any kind

of individualized persecution, pointing only to the civil unrest in her country and the

kidnaping of her husband. As the latter has already been discussed, we find that the IJ’s

conclusion that “there is no reason to believe [Perdomo] would be singled out on account

of race, religion, nationality, membership in a particular social group, or political opinion

in the future” is supported by substantial evidence.

       C.     Administrative Proceedings Comported with Due Process

       Perdomo’s claim that the IJ prejudged her claims lacks merit. At the administrative

hearing, the IJ stated, “It doesn’t look like much of a claim if you read this asylum

application. I wonder what we’re even doing here. I wonder if this claim gets any better



                                              6
when I hear it because as it’s written, it doesn’t even begin to approach a grantable claim

of asylum.” While we reserve comment on the IJ’s statement, the record demonstrates

that Perdomo had a full and fair opportunity to present her case to the court, including all

available evidence and witnesses. At no time was she denied the opportunity to a full and

fair hearing on the merits. To the contrary, the IJ’s remark set out for the parties where he

found weakness in the claim. Accordingly, we conclude that the IJ was merely giving his

preliminary comments after his initial assessment of the case, and at no time failed to

afford Perdomo a full and fair hearing on the merits.

                                     CONCLUSION

       For the foregoing reasons, the petition for review is denied.




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