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


6-20-2005

Rosal-Olavarrieta v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2408




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                                                       NOT PRECEDENTIAL

             UNITED STATES COURT OF APPEALS
                  FOR THE THIRD CIRCUIT


                            No. 04-2408


              RANDOLPH ROSAL-OLAVARRIETA,
                                     Petitioner

                                  v.

                   *ALBERTO R. GONZALES,
               Attorney General of the United States,
                                                Respondent

        (*Substituted pursuant to Rule 43(c), Fed. R. App. P.)


       On Petition for Review of a Decision and Order of the
                   Board of Immigration Appeals
                      (BIA No. A79-086-717)


          Submitted Pursuant to Third Circuit LAR 34.1(a)
                          May 24, 2005

Before: SCIRICA, Chief Judge, ALITO and RENDELL, Circuit Judges

                        (Filed June 20, 2005)




                    OPINION OF THE COURT
SCIRICA, Chief Judge.

       Petitioner Randolph Rosal-Olavarrieta alleges ineffective assistance of counsel

during immigration removal proceedings in violation of due process. The BIA concluded

Petitioner received a full and fair opportunity to develop his claims for asylum,

withholding of removal and deferral of removal. Accordingly, the Board denied relief on

the merits. We have jurisdiction under 8 U.S.C. § 1252 and will affirm.

                                             I.

       Because we write for the parties, an abbreviated recitation of the facts will suffice.

Petitioner, a citizen of Venezuela, entered the United States in 1999 by way of a six-

month tourist visa. He overstayed the visa, and was detained by the INS.1 In removal

proceedings before an Immigration Judge, Petitioner conceded removability but requested

asylum and withholding of removal under the Immigration and Nationality Act, and

deferral of removal under the Convention Against Torture. See Wang v. Gonzales, 405

F.3d 134 (3d Cir. 2005) (discussing asylum, withholding of removal, and the Convention

Against Torture). An HIV-positive homosexual man, Petitioner claimed a well-founded

fear of sexual-orientation persecution and/or torture upon his return to Venezuela.

       With the assistance of counsel, Petitioner submitted an asylum application prior to

his removal hearing. It included an eleven-page (single-spaced) declaration outlining


   1
   Beginning on March 1, 2003, INS became a part of the Department of Homeland
Security pursuant to the Homeland Security Act of 2002, Pub. L. No. 107-296, 110 Stat.
2135 (Nov. 25, 2002).

                                              2
Petitioner’s asserted grounds for relief. At the subsequent merits hearing, Petitioner

testified as to incidents of past sexual-orientation harassment and discrimination in

Venezuela and incidents of alleged extortion by the Venezuelan police. Petitioner also

emphasized the inadequacy of HIV/AIDS medical treatment in his home country.

Apparently dissatisfied with the information elicited during counsel’s direct examination,

the Immigration Judge proceeded to question Petitioner directly, asking, among other

things, “What do you think will happen to you if you return to Venezuela?” As recounted

in the BIA opinion, Petitioner answered that he would receive inadequate medical

treatment, but did not mention a fear of persecution or torture by the Venezuelan police.

       The Immigration Judge denied relief. Although the IJ credited much of

Petitioner’s testimony, he found that Petitioner “exaggerated” the incidents of past

persecution by the Venezuelan police. The IJ refused to credit this testimony and

accordingly denied asylum and withholding of removal. See Gao v. Ashcroft, 299 F.3d

266, 272 (3d Cir. 2002) (explaining that past persecution is cognizable only when

attributable to either the government or parties the government is unable or unwilling to

control). Furthermore, in light of Petitioner’s failure to describe past incidents of torture,

the IJ denied relief under the Convention Against Torture.

       Petitioner appealed to the BIA. Represented by new counsel, Petitioner sought to

introduce supplemental evidence before the Board and requested a remand to the IJ based

on the purported ineffective assistance of trial counsel. The Board refused to consider the



                                              3
supplemental evidence or to remand the case, concluding Petitioner had received ample

opportunity to develop his claims at trial, notwithstanding counsel’s “obvious difficulties”

in communicating with her client and counsel’s “personal problems that may have

affected her presentation of the respondent’s case.” The Board acknowledged that

counsel’s representation was less than optimal, but emphasized Petitioner’s opportunity to

proffer direct testimony of past persecution in both his written asylum application and in

response to direct examination by the Immigration Judge. In light of the IJ’s adverse

credibility finding, and the vague nature of Petitioner’s claims of past police persecution,

the Board dismissed the appeal on the merits.

                                             II.

       This petition for review does not challenge the Board’s merits determination, but

rather seeks a remand on the basis of ineffective assistance of counsel. Ineffective

assistance can be established in immigration matters where counsel’s representation (or

lack thereof) results in a fundamentally unfair proceeding. Borges v. Gonzales, 402 F.3d

398, 408 (3d Cir. 2005). To establish fundamental unfairness, the alien must demonstrate

prejudice—i.e., a reasonable probability of a different outcome had counsel performed

effectively. Saakian v. INS, 252 F.3d 21, 25 (1st Cir. 2001); Fischetti v. Johnson, 384

F.3d 140, 155 (3d Cir. 2004) (explaining prejudice analysis in habeas context). Petitioner

has not satisfied this burden.




                                              4
       Petitioner’s ineffective assistance claim is two-pronged. First, Petitioner contends

his written asylum application should have included additional information relevant to his

claims of persecution by the Venezuelan police. Petitioner blames trial counsel for not

properly explaining the legal requirements for asylum/withholding of removal, and for not

tailoring the application accordingly. Second, Petitioner contends counsel failed to

adequately prepare him for the merits hearing before the IJ and failed to provide

competent direct examination.

       But the BIA found that Petitioner did, in fact, allege persecution by the

Venezuelan police in his written application and did, in fact, testify as to these incidents

at the hearing. Trial counsel’s representation, whatever its defects, did not bar Petitioner

from airing his claims of past police persecution before the IJ. As emphasized by the

BIA, Petitioner testified that he had been “stopped by the police many times and forced to

pay a bribe or the police would put him in detention with other prisoners.” The IJ,

however, found these claims to be “exaggerated” and refused to credit them.

Furthermore, when the IJ queried Petitioner regarding his return to Venezuela, Petitioner

expressed anxiety over whether he would receive adequate medical care, but not fear of

persecution at the hands of the police. Based on Petitioner’s testimony, and the adverse

credibility finding of the IJ, the BIA concluded Petitioner had an adequate opportunity to

develop his allegations of persecution but had failed to do so. Accordingly, the Board

refused to consider Petitioner’s supplemental evidence and refused to remand to the IJ for



                                              5
another hearing. We see neither legal error nor prejudice in this determination, and

therefore no due process violation.

       The BIA expressly recognized that trial counsel’s performance was less than

optimal. But the Immigration Judge picked up where counsel faltered, and accorded

Petitioner ample opportunity to demonstrate his eligibility for relief. Petitioner

nevertheless failed to provide credible testimony of past persecution. Because there is no

showing of fundamental unfairness in the proceeding, we will deny the petition for

review.




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