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


11-6-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5324




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                                                                 NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                      No. 05-5324
                                     ____________

                         FELIPE VICTOR PEREIRA ROCHA,

                                                 Petitioner

                                            v.

                ATTORNEY GENERAL OF THE UNITED STATES,

                                            Respondent
                                     ____________

                           On Petition for Review from an
                      Order of the Board of Immigration Appeals
                               (Board No. A96 258 085)
                        Immigration Judge: Eugene Pugliese
                                    ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                 September 24, 2007

               Before: McKEE, BARRY and FISHER, Circuit Judges.

                              (Filed: November 6, 2007)
                                    ____________

                              OPINION OF THE COURT
                                   ____________

FISHER, Circuit Judge.

      This case comes to us on a petition for review of a final order of removal from the

Board of Immigration Appeals (“BIA”). Felipe Victor Pereira Rocha requests that we
find that the immigration judge (“IJ”) presiding over his hearing was so biased as to

violate his due process rights. In the alternative, he argues that the BIA, in affirming the

IJ’s decision, erred by denying his applications for asylum, withholding of removal, and

protection under the Convention Against Torture (“CAT”). For the reasons set forth

below, we will deny his petition.

                                              I.

       Because we write exclusively for the parties who are familiar with the factual

context and legal history of this case, we will set forth only those facts necessary to our

analysis. Felipe Victor Pereira Rocha was born in Portugal, but his family moved to

Venezuela when he was five, where he eventually became a citizen. Although he visited

the United States for two weeks as a visitor in 1994, he remained a full-time resident of

Venezuela until 1995 when he moved to the United States. Between 1995 and 1998,

Rocha lived and worked in the United States, but he traveled to Venezuela approximately

eight times. In 1999, Rocha was diagnosed as being HIV positive, and during his illness,

his then-current visa expired. On April 1, 2003, Rocha was placed in removal

proceedings. He conceded removability, but filed applications for asylum, withholding of

removal, and protection under the Convention Against Torture (“CAT”).

       At a subsequent hearing, Rocha testified that he decided to file an asylum claim

after he became ill and learned that Venezuela does not have the same treatments for HIV

and AIDS that the United States has. He also testified that he had been harassed in

Venezuela because of his homosexuality. In particular, in or around 1990, the

                                              2
Venezuelan police called him a “whore,” struck his boyfriend, and sexually assaulted him

with a gun, but he did not report the incident. In addition to Rocha’s testimony, he

presented the IJ with articles and reports regarding conditions in Venezuela. These

articles described his brother’s death,1 detailed the treatment of homosexuals,

transgendered individuals, and cross-dressers in Venezuela, and detailed the treatment of

those with HIV or AIDS in Venezuela.

       The IJ found that Rocha’s asylum application was untimely with no excuse of

exceptional circumstances, and Rocha had failed to provide sufficient evidence to prove

that he was entitled to withholding of removal or relief under the CAT. The BIA adopted

and affirmed the IJ’s decision. Rocha timely filed a petition for review.

                                             II.

       We have jurisdiction to review a final order of removal from the BIA pursuant to 8

U.S.C. § 1252(a)(1).

                                             A.

       Rocha first claims that the IJ was so biased against him that it was a violation of

his due process rights.2 We review de novo whether an IJ’s bias resulted in a violation of


       1
       Rocha claims that the police murdered his brother, who was a homosexual. He
provided some testimony about his brother’s death, but the IJ stated that he was not sure
whether it was relevant how Rocha’s brother died.
       2
        Before an alien may bring a matter to this Court’s attention, he must exhaust his
administrative remedies. 8 U.S.C. § 1252(d)(1). A petitioner has exhausted his
administrative remedies before the BIA “so long as [he] makes some effort, however
insufficient, to place the Board on notice of a straightforward issue being raised on

                                             3
an alien’s due process rights. Abdulrahman v. Ashcroft, 330 F.3d 587, 595-96 (3d Cir.

2003). At a minimum, due process requires the right to “‘be heard at a meaningful time

and in a meaningful manner.’” Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d Cir. 2001)

(quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976)). In the immigration context,

then, “due process requires that aliens threatened with deportation are provided the right

to a full and fair hearing that allows them a reasonable opportunity to present evidence on

their behalf.” Abdulrahman, 330 F.3d at 596 (internal quotation marks and citation

omitted). In order to ensure such a “full and fair hearing,” an alien facing removal

proceedings is entitled to an IJ who is neutral and impartial. Id.

       An IJ’s statements and behavior while conducting a hearing may rise to the level

of a due process violation where the IJ insults and belittles a petitioner. See Wang v. Att’y

Gen., 423 F.3d 260, 265-69 (3d Cir. 2005) (calling the petitioner a “horrible parent,” and

stating that she found it “infuriating” that Wang “never even one time did anything

honest”). However, mere discourtesy on the part of an IJ is insufficient to constitute a

due process violation. See Abdulrahman, 330 F.3d at 597 (stating that a due process

violation had not occurred even though the IJ’s language “reflect[ed] an annoyance and

dissatisfaction with [the alien]’s testimony that is far from commendable”).




appeal.” Yan Lan Wu v. Ashcroft, 393 F.3d 418, 422 (3d Cir. 2005) (citing Bhiski v.
Ashcroft, 373 F.3d 363, 367-68 (3d Cir. 2004)). Rocha raised the issue of bias, and
therefore, the BIA was on notice that this bias could have affected any of the types of
relief Rocha sought to establish.

                                              4
       In support of his claim that the IJ was biased, Rocha points to two portions of the

record. The IJ questioned Rocha regarding (1) whether he has HIV or AIDS; and (2) his

receipt of federal funds to pay for his AIDS medication. While the IJ seemed annoyed

during these portions of the hearing, his statements and overall behavior were not so

severe that he abdicated his role as a neutral and impartial arbiter. Therefore, the IJ’s

behavior did not rise to the level of a violation of Rocha’s due process rights.3

                                              B.

       Rocha petitions for review of the IJ’s denial of his applications for asylum,

withholding of removal, and protection under the CAT.4 Where, as here, the BIA has

adopted a portion of the IJ’s decision, we review the decisions of both the BIA and the IJ.

Shehu v. Att’y Gen., 482 F.3d 652, 657 (3d Cir. 2007). We review the factual


       3
        Rocha also argues that the IJ’s bias led him to improperly refuse to consider two
pieces of evidence: (1) his brother’s death; and (2) a policy statement from the Office of
the General Counsel regarding HIV and AIDS policies. With regard to his brother’s
death, although the evidence may have been relevant to his claim, he cannot demonstrate
that the failure to present this evidence potentially affected the outcome of his case
because substantial evidence supported the IJ’s determination. See Cham v. Att’y Gen.,
445 F.3d 683, 693-94 (3d Cir. 2006) (holding that the persecution of an alien’s family
members can be relevant to an alien’s asylum claim, but the alien would also need to
demonstrate that not admitting the evidence prejudiced his claim). With regard to the
policy statement, the IJ did not err in his refusal to accept it as evidence because he is not
bound by the policy statement, and further, counsel did not comply with the IJ’s internal
procedure to submit all documentation ten days prior to the hearing. For the reasons
described above, we find these arguments unavailing.
       4
       We may not review Rocha’s asylum claim. The IJ and BIA properly found that
Rocha failed to file an application for asylum within one year of his last entry into the
United States, and we may not review their determination that Rocha failed to show
extraordinary circumstances relating to his delay in filing. See 8 U.S.C. § 1158(a)(2)(B),
(3).

                                              5
determinations of the BIA and IJ for substantial evidence, and uphold the decisions if

they are “supported by reasonable, substantial, and probative evidence on the record

considered as a whole.” Balasubramanrim v. INS, 143 F.3d 157, 161 (3d Cir. 1998)

(internal quotation marks and citation omitted). “[T]he BIA’s [and IJ’s] finding must be

upheld unless the evidence not only supports a contrary conclusion, but compels it.”

Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir. 2001).

       Pursuant to the Immigration and Nationality Act, the Attorney General may not

remove an alien to his country of origin if his “life or freedom would be threatened in that

country because of [his] race, religion, nationality, membership in a particular social

group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A). In order to qualify for

withholding of removal under § 1231, an alien must show the threat by a clear

probability. INS v. Stevic, 467 U.S. 407, 430 (1984). “A clear probability means ‘more

likely than not.’” Tarrawally v. Ashcroft, 338 F.3d 180, 186 (3d Cir. 2003) (quoting

Stevic, 467 U.S. at 429-30).

       Here, substantial evidence supports the IJ’s determination that Rocha failed to

show that it was more likely than not that his life or freedom would be threatened in

Venezuela based on his sexual preference. His decision to remain in Venezuela for many

years after the alleged abuse and his eight extended trips to Venezuela after he moved to

the United States undercut Rocha’s claim that his life or freedom would be threatened in

Venezuela. Moreover, he stated that he decided to file for asylum because of the lack of

medication in Venezuela, and the IJ found that was the real reason for his application.

                                             6
Based on the record as a whole, reasonable, substantial, and probative evidence existed

for the IJ’s conclusion that Rocha did not qualify for withholding of removal.

       In order to meet the requirements for protection under the CAT, an applicant must

prove “that it is more likely than not that he or she would be tortured if removed to the

proposed country of removal.” 8 C.F.R. § 1208.16(c)(2). “Torture is an extreme form of

cruel and inhuman treatment and does not include lesser forms of cruel, inhuman or

degrading treatment or punishment that do not amount to torture.” 8 C.F.R.

§ 1208.18(a)(2). Rocha has not provided any evidence that rises to the level of torture.

Therefore, substantial evidence also supports the BIA’s and IJ’s decision that Rocha was

ineligible for relief under the CAT.

                                            IV.

       For the reasons set forth above, we will deny Rocha’s petition for review.




                                             7
