                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-29-2003

Arce-Garibay v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-3945




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                                               NOT PRECEDENTIAL


               UNITED STATES COURT OF APPEALS
                    FOR THE THIRD CIRCUIT


                             NO. 02-3945


                     ANDRES ARCE-GARIBAY,

                                  Petitioner

                                      v.

            JOHN ASHCROFT, Attorney General United States;
ANDREA J. QUARANTILLO, New Jersey District Director, Immigration and
Naturalization Service; IMMIGRATION & NATURALIZATION SERVICE,

                             Respondents


               On Petition for Review of an Order of the
                    Board of Immigration Appeals
                           (No. A73 056 090)


            Submitted Pursuant to Third Circuit LAR 34.1(a)
                          October 17, 2003

     BEFORE: SLOVITER, ROTH and STAPLETON, Circuit Judges

                 (Opinion Filed     October 29, 2003   )




                      OPINION OF THE COURT
STAPLETON, Circuit Judge:


               Andres Arce-Garibay, a native and citizen of Peru, seeks review of an order

of the Board of Immigration Appeals (“BIA”) affirming an Immigration Judge’s (“IJ”)

denial of his application for asylum and withholding of deportation. Because Arce-

Garibay was placed in deportation proceedings prior to April 1, 1997, and his final order

of deportation was entered by the BIA after October 31, 1996, we have jurisdiction under

8 U.S.C. Section 1105a (1994), as amended by the transitional rules for judicial review in

Section 309(c)(4) of the Illegal Immigration Reform and Immigrant Responsibility Act of

1996, Pub.L. No. 104- 208, 110 Stat. 3009-306, 3009-625 (Sept. 30, 1996) (“IIRIRA”);

see also Ahmed v. Ashcroft, 341 F.3d 214, 215 (3d Cir. 2003). We will deny the petition

for review.

                                              I.

               Because we write exclusively for the benefit of the parties, we will recite

only those facts relevant to the issues before us. Arce-Garibay entered the United States

without inspection in 1992 and applied for asylum the following year. When the federal

government initiated deportation proceedings against him in 1996, he conceded

deportability but sought relief under his asylum claim. He also filed a supplemental

application.

               In 1998, the IJ held a one-day hearing at which Arce-Garibay was the only

witness. He testified that he was born and raised in a rural region of Peru that in later

                                              2
years became closely linked with the Shining Path terrorist organization. Arce-Garibay

claimed the Shining Path harassed many people in his region to join their cause, but that

he refused and in 1978 left for the city of Lima to obtain a secondary education. He

subsequently entered a military school in Lima that was affiliated with the Peruvian

military. Arce-Garibay testified that during the last year of military school, the Shining

Path ambushed a bus in which he was traveling. He claimed the terrorists shot him when

they discovered he was associated with the military, but that he was able to escape by

diving into nearby bushes.

              Following his graduation from military school, Arce-Garibay joined the

Peruvian air force as a third-grade officer. He was later promoted to second-grade officer

and placed in charge of a company of ninety soldiers. He testified that he was responsible

for ensuring the maintenance and repairs of the aircraft at his base, a role which required

extra security clearance.

              Arce-Garibay testified before the IJ that beginning in 1990 the military

began to suspect that he was somehow linked to the Shining Path because of his rural

background. He claimed the military interrogated him and tried to force a confession out

of him, but that he refused. He allegedly resigned from the military and fled to the United

States, but testified that he later learned the military had refused to accept his resignation

and had commenced a court martial proceeding against him.

                                              II.



                                               3
              The IJ denied Arce-Garibay’s petition. The IJ discredited the alleged bus

attack because it did not appear in Arce-Garibay’s original or supplemental asylum

applications.1 The IJ further explained that he found implausible Arce-Garibay’s

explanation for this omission, which was that he was afraid to reveal too much about

himself in his asylum application. The IJ also noted that, even if the story were true, there

was no reason to believe the Shining Path was still pursuing Arce-Garibay or would

recognize him all these years later. As for the alleged persecution by the Peruvian

military, the IJ explained that he had “no way of knowing, on the basis of the evidence

before [him], whether that court martial is justified or not.” The IJ also noted that it

seemed unlikely that the Peruvian military would falsely accuse Arce-Garibay of being

associated with the Shining Path, considering the time and effort the military had

expended on his education and the level of responsibility assigned to him. Nor was there

any corroboration for the claim that the military was singling out soldiers who emanated

from a particular region of the country. Accordingly, the IJ found that Arce-Garibay had

not carried his burden of proving past persecution and a well-founded fear of future

persecution. The IJ did, however, grant Arce-Garibay’s request for voluntary departure.

              The BIA affirmed the IJ’s decision. It observed that the bus attack “has not

been shown to be associated with his political opinion, but it was fortuitous, occasioned

by the guerrillas’ discovery of his military ID.” The BIA also remarked that Arce-

   1
      Although Arce-Garibay’s supplemental asylum application mentioned an “attempt on
his life,” it did not provide any details of this alleged attempt.

                                              4
Garibay had not established that the court martial was “occasioned by his ethnic

background and the documents submitted only accuse him of ‘errors,’ not treason or

relations with the Shining Path.”

                                             III.

              Under the governing law, we must ascertain whether the BIA's factual

determinations are supported by substantial evidence. Senathirajah v. INS, 157 F.3d 210,

216 (3d Cir. 1998). We may decline to uphold the BIA’s findings only if the evidence

compels a contrary conclusion. INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992). We

defer to the BIA’s interpretation of the Immigration and Nationality Act (“INA”) unless

the interpretation is “‘arbitrary, capricious, or manifestly contrary to the statute.’” Katsis

v. INS, 997 F.2d 1067, 1070 (3d Cir. 1993) (quoting Chevron U.S.A. Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837, 844 (1984)).

              Section 208(b) of the INA, 8 U.S.C. § 1158(b), provides that the Attorney

General has discretion to grant asylum to refugees. The INA defines a refugee as a

person who is unable or unwilling to return to his country “because of persecution or a

well-founded fear of persecution on account of race, religion, nationality, membership in

a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). The asylum

applicant bears the burden of establishing that he falls within this definition. 8 C.F.R. §

208.13(a) (2003). Establishing eligibility for withholding of deportation requires a

showing of a “clear probability of persecution,” a higher standard than that for asylum.



                                               5
INS v. Stevic, 467 U.S. 407, 430 (1984); Fatin v. INS, 12 F.3d 1233, 1238 (3d Cir. 1993).

              If an immigration judge finds that a witness’s testimony lacks credibility,

we have stated that the judge must “offer a specific, cogent reason for [his or her]

disbelief.” Senathirajah, 157 F.3d at 216 (internal quotation marks and citation omitted).

Accordingly, we review the proffered “reasons to determine whether they are valid

grounds upon which to base a finding that the applicant is not credible.” Id. (internal

quotation marks and citation omitted).

              Arce-Garibay contends that the IJ erred as a matter of law when he

determined that Arce-Garibay failed to establish that he suffered past persecution or a

well-founded fear of future persecution. In support of that contention, Arce-Garibay

summarizes his testimony before the IJ and argues that that evidence supports his asylum

claim. Although that approach would be sound if we were conducting a plenary review,

we review the record solely to determine if there is substantial evidence to support the

BIA’s decision, Senathirajah, 157 F.3d at 216, and we may reverse the findings below

only if the evidence compels otherwise. Elias-Zacarias, 502 U.S. at 481 n.3. Having

conducted a close review of the administrative record, we are satisfied that there is

substantial evidence to support the BIA’s decision.

              Arce-Garibay also argues that, if his testimony were deemed credible, he

would be eligible for asylum because the Peruvian military allegedly will charge him with

being a member of the Shining Path if he returns to Peru. The IJ determined, however,



                                             6
that Arce-Garibay’s testimony was not entirely credible and the BIA correctly noted that

the documentary evidence submitted in support of Arce-Garibay’s asylum application

mentions only disciplinary “errors.” 2 In addition, we too find it unpersuasive that the

Peruvian military would falsely accuse Arce-Garibay -- who was educated and promoted

by the military and who was in charge of ninety soldiers and numerous aircraft -- of

consorting with the Shining Path simply because he was raised in a part of the country

closely linked with that terrorist group.3

              Accordingly, we will DENY the petition for review of the BIA’s decision.




   2
     We also note that Arce-Garibay’s original asylum application made no mention of
the court martial proceeding against him.
   3
      Although the brief submitted by Arce-Garibay mentions in passing that he is entitled
to relief under the Convention Against Torture, he waived this argument by failing to
develop it in the body of his brief. See Reynolds v. Wagner, 128 F.3d 166, 178 (3d Cir.
1997) (“[A]n argument consisting of no more than a conclusory assertion . . . will be
deemed waived.”). We also note that this argument was not raised before the BIA. See
Alleyne v. INS, 879 F.2d 1177, 1182 (3d Cir. 1989) (explaining that courts of appeals lack
jurisdiction to entertain arguments not raised in appeal to BIA).

                                             7
TO THE CLERK:

         Please file the foregoing not precedential opinion.




                                /s/ Walter K. Stapleton
                                ____________________
                                Circuit Judge




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