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


2-22-2006

Quintero-Valencia v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2000




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NOT PRECEDENTIAL

                   IN THE UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                   Case No: 05-2000

                          SANDRA QUINTERO-VALENCIA;
                             JOHN LOPEZ-QUINTERO,
                                              Petitioners

                                             v.

                              ATTORNEY GENERAL OF
                               THE UNITED STATES,
                                               Respondent


                         On Petition for Review of a Final Order
                          of the Board of Immigration Appeals
                         BIA Nos. A79 659 564 & A79 659 565


                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                  January 26, 2006

                    Before: RENDELL and SMITH, Circuit Judges,
                             and IRENAS, District Judge*

                                (Filed February 22, 2006)


                              OPINION OF THE COURT


SMITH, Circuit Judge.

      Sandra Quintero Valencia, individually and on behalf of her son, John Lopez



  *
    The Honorable Joseph E. Irenas, Senior District Judge for the District of New Jersey,
sitting by designation.
Quintero, petitions for review of the decision by the Board of Immigration Appeals

(“BIA”) denying her motion for reconsideration. Valencia’s motion requested that the

BIA reconsider its affirmance of the denial by the Immigration Judge (“IJ”) of her

application for asylum, withholding of removal, and relief under the Convention Against

Torture (“CAT”). For the reasons that follow, we will deny Valencia’s petition for

review.

                                            I.

      Valencia and her son are natives and citizens of Colombia. She entered the United

States in July of 2001, and filed an application in November of 2001 seeking political

asylum, withholding of removal, and relief under the CAT. According to her application,

Valencia lived in Medellin in 1999 with her son and her boyfriend, Julian Andres Lopez,

who owned and operated a grocery store. A neighborhood militia extorted money from

Andres on a regular basis. Andres objected to the demands for money and complained to

his friend, Juan Carlos, who encouraged Andres to join the paramilitary forces. Andres

declined the invitation. After Juan Carlos was killed in January of 2001, Andres was

abducted by the militia, beaten, and interrogated regarding whether he belonged to the

paramilitary forces. Andres denied any association with the paramilitary forces, and was

subsequently released.

      Thereafter, Andres and Valencia, together with her son, moved from Medellin to

Manizales. Valencia alleged that the militia followed them to Manizales. To escape the

militia, Andres, Valencia, and her son traveled to Bogota, where they were able to obtain

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fake Spanish passports. From Bogota, they traveled to Venezuela. Eventually, Valencia,

her son, and Andres boarded a flight and arrived in Atlanta, Georgia.

       Valencia’s testimony, however, differed from her application. At her hearing

before the IJ, she testified that in February of 2001, Andres refused to pay the militia as

they demanded. Thereafter, the militiamen came to the store looking for Andres, hit her,

and seized Andres when he returned later that day. Based on Valencia’s description of

the events, the IJ concluded that Andres’s treatment was not based on any suspected

affiliation with the paramilitary forces, but was due to his refusal to comply with the

extortion demand by the neighborhood militia. In addition, the IJ explained that there

was no evidence to support the fact that Juan Carlos, Andres’s friend, was a member of

the paramilitary or that he had paramilitary sympathies.

       After noting several other inconsistencies in Valencia’s claim, the IJ denied her

application for asylum, withholding of removal, and relief under the CAT. The BIA

affirmed, without opinion, the IJ’s decision on May 28, 2004. Valencia did not file a

petition for review of that decision. Instead, she filed a timely motion for reconsideration

on June 28, 2004, arguing that the record supported her claim of political persecution

because she had met her burden by showing that the motive for her mistreatment was, in

part, based on an imputed political opinion. She also challenged the IJ’s adverse

credibility finding. The BIA rejected her challenge to the adverse credibility finding,

noting that the IJ’s decision was supported by the record and that Valencia had failed to

provide convincing explanations for the discrepancies and omissions. It also rejected her

                                              3
assertion that the extortion and the mistreatment she and Andres sustained were based in

part on an actual or imputed political opinion.

       This timely petition for review of the BIA’s denial of Valencia’s motion for

reconsideration followed. The BIA had jurisdiction over Valencia’s motion to reconsider

pursuant to 8 C.F.R. § 1003.2. We have appellate jurisdiction over the BIA’s denial of

the motion for reconsideration because it is a final order of removal for purposes of 8

U.S.C. § 1252. Sevoian v. Ashcroft, 290 F.3d 166, 171 (3d Cir. 2002).

       A motion for reconsideration must “specify the errors of law or fact in the previous

order and shall be supported by pertinent authority.” 8 U.S.C. § 1229a(c)(6)(C); 8 C.F.R.

§ 1003.2(b)(1). Regulation 1003.2(a) provides that the “decision to grant or deny a

motion to . . . reconsider is within the discretion of the Board.” 8 C.F.R. § 1003.2(a).

Accordingly, we review to determine if the BIA abused its discretion. “Discretionary

decisions of the BIA will not be disturbed unless they are found to be ‘arbitrary, irrational

or contrary to law.’” Tipu v. I.N.S., 20 F.3d 580, 582 (3d Cir. 1994) (quoting Chung v.

I.N.S., 602 F.2d 608, 612 (3d Cir. 1979)).

       Valencia’s motion for reconsideration asserted that the IJ erred by not crediting her

testimony because the inconsistencies he identified were minor and because he failed to

accord more weight to certain aspects of her testimony. The BIA reviewed the record and

concluded that it supported the IJ’s adverse credibility finding. In light of the record

support for the adverse credibility determination, and the fact that the BIA may not

disturb the factual findings of an IJ unless they are clearly erroneous, see 8 C.F.R. §

                                              4
1003.1(d)(3)(i), we cannot conclude that the BIA’s refusal to reconsider this factual

aspect of Valencia’s claim was an abuse of discretion. Nor do we find any abuse of

discretion in rejecting Valencia’s legal argument that she established a mixed motive

claim of political persecution. The BIA considered her theory, but was not persuaded that

there was sufficient supporting evidence.

       We note that in arguing that the BIA abused its discretion in denying her motion

for reconsideration, Valencia also asserted that the BIA’s decision deprived her of her

right to due process. This claim is without merit. Valencia was afforded an opportunity

to be heard at a meaningful time and in a meaningful manner. See Abdulai v. Ashcroft,

239 F.3d 542, 549 (3d Cir. 2001) (observing that the fundamental requirement of due

process is that the individual be afforded an opportunity to be heard) (quoting Mathews v.

Eldridge, 424 U.S. 319, 349 (1976)).

       We will deny Valencia’s petition for review.




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