                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-14-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1153




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                                                  NOT PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT
                 ____________

                   No. 07-1153
                   No. 07-1154
                  ____________
            RODRIGO TORRES - 07-1153
            REINALDO MOTTA - 07-1154

                           Petitioners,


                            v.

         Attorney General of the United States,

                            Respondent.

                    ____________

            On Petition for Review from an
       Order of the Board of Immigration Appeals
       (Board Nos. A98-493-260, A98-493-261)
          Immigration Judge: Mirlande Tadal
                     ____________

       Submitted Under Third Circuit LAR 34.1(a)
                    March 7, 2008

Before: BARRY, JORDAN and HARDIMAN, Circuit Judges.

                (Filed: March 14, 2008 )

                    ____________

              OPINION OF THE COURT
                   ____________
HARDIMAN, Circuit Judge.

       In this consolidated appeal, Rodrigo Torres and Reinaldo Motta challenge the

Board of Immigration Appeals’ denial of their petitions for withholding of removal.

Appellants argue that the Immigration Judge (IJ) erred by refusing to consolidate their

petitions and by determining that they did not meet the standard for withholding. We will

deny the petitions for review.

                                              I.

       Torres and Motta are Colombian natives. They are HIV-positive gay men who

entered the United States on I-94 visas in 1999. Although they registered as partners

under the New Jersey Domestic Partnership Act of 2003, neither man applied for asylum.

In separate oral opinions dated August 8, 2005, the IJ denied their petitions for

withholding of removal and Convention Against Torture protection. The BIA adopted

and affirmed the IJ’s decisions in identical per curiam opinions.

                                             II.

       We have jurisdiction pursuant to 8 U.S.C. § 1252(a). Because the BIA not only

adopted the IJ’s decisions but also expanded upon them, our review encompasses both

decisions. Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004).

       Appellants first argue that, because they are a “family unit,” the IJ erred in refusing

to consolidate their petitions. An IJ may consolidate the cases of different petitioners to

promote administrative efficiency as long as hearing the cases together does not deny the



                                              2
petitioners the right to fully litigate their claims. 8 C.F.R. § 1240.1(a)(iv); Matter of

Taerghodsi, 16 I&N Dec. 260, 262-63 (BIA 1977). Typically, consolidation is used

where a family member claims derivative asylum status through another family member,

or where two petitions rely on the same events. See, e.g., Segura v. Att’y Gen., 240 Fed.

Appx. 347, 348-49 (11th Cir. 2007); Jabba v. Att’y Gen., 195 Fed. Appx. 883, 884 n.1

(11th Cir. 2006). Consolidation is not required, however, and is generally disfavored

because of its potential to deprive petitioners of procedural due process rights. See

United States v. Barraza-Leon, 575 F.2d 218, 220 (9th Cir. 1978); Taerghodsi, 16 I&N

Dec. at 263.

       In the case at bar, the IJ did not abuse her discretion when she decided to hear

Appellants’ petitions separately. First, even if Appellants constitute a “family unit,” there

is no derivative status for family members under the withholding of removal statute. See

8 U.S.C. § 1231(b)(3); Ali v. Ashcroft, 394 F.3d 780, 782 n.1 (9th Cir. 2005). Second,

Appellants’ petitions do not rely exclusively on the same incidents of alleged persecution.

Finally, Appellants were not prejudiced by the IJ’s refusal to consolidate because that did

not prevent Torres or Motta from testifying at each other’s hearings.

                                              III.

       Appellants next argue that the agency’s denials of their petitions were not

supported by substantial evidence as required by Gao v. Ashcroft, 299 F.3d 266, 272 (3d

Cir. 2002). Appellants were obligated to show that it was more likely than not that their



                                               3
“life or freedom would be threatened” upon their return to Colombia “because of their

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

8 U.S.C. § 1231(b)(3); 8 C.F.R. § 1208.16(b); Amanfi v. Ashcroft, 328 F.3d 719, 725 (3d

Cir. 2003). The threat of persecution must be “severe” and “does not encompass all

treatment that our society regards as unfair, unjust, or even unlawful or unconstitutional.”

Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993).

       We assume without deciding that Appellants are members of a particular social

group. See Amanfi, 328 F.3d at 730; Matter of Toboso-Alfonso, 20 I&N Dec. 819, 822

(BIA 1990). Nevertheless, substantial evidence supports the BIA’s conclusion that

Appellants failed to carry their burden of demonstrating a clear probability that they

would be persecuted in Colombia. INS v. Stevic, 467 U.S. 407, 424 (1984). Torres

testified that he was fired from a job because a secretary discovered his relationship with

Motta. Motta testified that he was arrested and briefly detained during a police raid on a

discotheque. Although these incidents are evidence that Torres and Motta were harassed

and discriminated against, they do not rise to the level of persecution. See Fatin, 12 F.3d

at 1240; Ahmed v. Ashcroft, 341 F.3d 214, 218 (3d Cir. 2003); Kibinda v. Att’y Gen., 477

F.3d 113, 119 (3d Cir. 2007).

       Nor does the documentary evidence in the record compel the conclusion that

Appellants face a clear probability of future persecution, see 8 C.F.R. § 1208.16(b)(2),




                                              4
because it shows increasing tolerance of homosexuals in Colombia.1 Accordingly, we

find that substantial evidence supports the agency’s determination that Appellants are not

entitled to withholding of removal. For the foregoing reasons, Appellants’ petitions for

review will be denied.




       1
         For example, the Colombian military permits openly gay men to serve in its
forces, and the Colombian Constitutional Court ruled that teachers cannot be dismissed
because of their sexual orientation.

                                            5
