Gonzalo Perez-Morales v. Eric Holder, Jr.

448 F. App'x 585
Court of Appeals for the Sixth Circuit·Decided November 30, 2011·No. 10-3063·Unpublished·Cited by 2 cases

Opinions

MERRITT, Circuit Judge.

Petitioner Gonzalo Perez-Morales seeks review of a decision of the Board of Immigration Appeals dated December 31, 2009. In that decision, the Board dismissed Perez-Morales’s appeal and affirmed the decision of the Immigration Judge denying his applications for asylum and withholding of removal under the Immigration and Nationality Act, 8 U.S.C. §§ 1158(a)(1), 1231(b)(3)(A) (1965),1 and protection under the United Nations Convention Against Torture.2 Perez-Morales seeks review on the following grounds: (1) an incomplete transcript of his removal proceeding denied him due process of law by preventing him from establishing that an extraordinary circumstance excused his delay in filing for asylum; (2) the Immigration Judge and the Board both erred in finding that he failed to qualify for withholding of removal because it is more likely than not that he will be persecuted if he returns to Guatemala; and (3) the Immigration Judge and the Board also erred in finding that he was ineligible for protection under the Convention Against Torture because it is more likely than not that he will be tortured if he returns to Guatemala. Although we are sympathetic to Perez-Morales’ plight, his arguments are unconvinc[587]*587ing. Accordingly, we affirm the Board’s decision.

I. Background

Perez-Morales illegally entered the United States on February 14, 1997.3 On October 8, 2005, the Department of Homeland Security served Perez-Morales with a Notice to Appear in immigration court to contest the charge that he was removable pursuant to the Immigration and Nationality Act as an alien present in the United States who had been neither admitted nor paroled. See 8 U.S.C. § 1182(a)(6)(A)(i). On March 1, 2007, Perez-Morales jointly filed applications for asylum, withholding of removal, and protection under the Convention Against Torture. He thereafter testified in support of his applications on March 19, 2008. The Immigration Judge denied all three. With respect to his application for asylum, the judge determined that he had failed to show either a changed or extraordinary circumstance that would excuse his delay in filing outside the one-year window. See 8 C.F.R. §§ 1208.4(a)(2), (4), (5) (2011). The judge denied on the merits his applications for withholding of removal and protection under the Convention Against Torture. On appeal, the Board affirmed the Immigration Judge’s decision. This petition followed.

II. Discussion

1. Standard of Review

Because the Board issued a separate opinion rather than summarily affirming the Immigration Judge’s decision, we review the Board’s decision as final. See Khalili v. Holder, 557 F.3d 429, 435 (6th Cir.2009). However, we also examine the Immigration Judge’s decision to the extent that the Board adopted its reasoning. See id.) Patel v. Gonzales, 470 F.3d 216, 218 (6th Cir.2006). We review questions of law de novo and any factual determinations under a substantial evidence standard. See Khalili, 557 F.3d at 435.

2. Denial of Due Process

Perez-Morales asserts that an incomplete transcript of his removal proceeding violated his due process rights by denying him meaningful appellate review. We have jurisdiction to review the Board’s findings relevant to this issue because Perez-Morales raises a constitutional claim. See Almuhtaseb v. Gonzales, 453 F.3d 743, 748 (6th Cir.2006). Specifically, he contends that a large number of “indiscernible notations” precluded him from arguing that the ineffective assistance of his prior counsel constituted an “extraordinary circumstance” justifying his considerable delay in filing for asylum. (Petitioner’s Brief at 14.) According to Perez-Morales, a complete transcript would have allowed him to meet the requirements for asserting such a claim. See Matter of Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988). This conclusion misconstrues the conditions set forth in Lozada. Even if a complete transcript had aided it, his claim on appeal would nonetheless have been procedurally deficient. He did not submit to the Board an affidavit detailing his agreement with his former attorney or show that the attorney had been informed of the allegations and given an opportunity to respond. See Lazar v. Gonzales, 500 F.3d 469, 476 (6th Cir.2007).

Moreover, we agree with the conclusion of both the Immigration Judge and the Board that Perez-Morales has failed to show that omissions in the transcript prejudiced him. Due process in this context [588]*588requires a petitioner to establish that “a complete and accurate transcript would have changed the outcome of the case.” Garza-Moreno v. Gonzales, 489 F.3d 239, 242 (6th Cir.2007). Such was not the case here. Even conceding that Perez-Morales detrimentally relied on the advice of an attorney who told him, in 1997, that he was ineligible to apply for political asylum— and that this constituted an “extraordinary circumstance” justifying an initial postponement in filing — it cannot explain why Perez-Morales waited another ten years before making his asylum claim. We agree with the Immigration Judge and the Board that this was an unreasonably long delay. See Fang Huang v. Mukasey, 523 F.3d 640, 651 (6th Cir.2008) (affirming denial of petitioner’s asylum application and reasoning that petitioner’s eighteen-month delay in filing her asylum application was unreasonable).

3. Denial of Application for Withholding of Removal

Perez-Morales next contends that both the Immigration Judge and the Board improperly denied his application for withholding of removal. Withholding of removal is mandatory if an alien establishes that his “life or freedom will be threatened in the proposed country of removal on account of race, religion, nationality, membership in a particular social group, or political opinion.” See INS v. Stevic, 467 U.S. 407, 411, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984) (citing 8 U.S.C. § 1253(h)(1)). Perez-Morales asserts that gangs in Guatemala target young men for the purpose of recruiting them. He also asserts that gangs harass and perpetrate crimes against Christians and other “church going people.” (Petitioner’s Brief at 20.) Thus, Perez-Morales’ status as “a young Christian male of Guatemala,” renders him doubly vulnerable to gang violence. Id.

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Gonzalo Perez-Morales v. Eric Holder, Jr., 448 F. App'x 585 (6th Cir. 2011).

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