Onesio Zunguza v. Atty Gen USA

• Court: Court of Appeals for the Third Circuit
• Decided: September 5, 2012
• Docket: 10-4236
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________

No. 10-4236 No. 11-1750 No. 11-3135 ____________

ONESIO A. ZUNGUZA,

Petitioner v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent ____________

On Petition for Review from Orders of the Board of Immigration Appeals (Board No. A087-943-340) Immigration Judge: Honorable Mirlande Tadal ____________

Argued July 10, 2012 Before: FUENTES, HARDIMAN and ROTH, Circuit Judges.

(Filed: September 5, 2012)

Joshua E. Bardavid [Argued] 22nd Floor 351 Broadway New York, NY 10013-0000

Theodore N. Cox Suite 701 401 Broadway New York, NY 10013-0000 James J. Orlow Orlow, Kaplan & Hohenstein 620 Chestnut Street Suite 656 Philadelphia, PA 19106-0000 Attorneys for Petitioner

W. Daniel Shieh [Argued] Eric H. Holder, Jr., Jacob A. Bashyrov Thomas W. Hussey United States Department of Justice Office of Immigration Litigation, Civil Division P.O. Box 878 Ben Franklin Station Washington, DC 20044 Attorneys for Respondent

____________

OPINION OF THE COURT ____________

HARDIMAN, Circuit Judge.

Onesio Zunguza petitions for review of the Board of Immigration Appeals‟

(BIA‟s) final order of removal and its denials of his two motions to reopen proceedings.

For the reasons that follow, we will deny his petitions.

I

Zunguza is an Italian citizen who tried to enter the United States under the Visa

Waiver Pilot Program. He was detained at Newark International Airport on March 30,

2010, where he told Customs officials that he had entered the country with the intent of

getting an education. After an immigration officer determined that Zunguza‟s true intent

2 was to work in the United States, he was taken into custody and charged with

inadmissibility.

Between April 5 and April 27, 2010, an immigration judge (IJ) granted Zunguza

four continuances to obtain an attorney. Zunguza claimed he had been denied access to

the money he brought from Italy and that he therefore was unable to pay for

representation. When counsel entered an appearance at a May 6, 2010, hearing over

which a second IJ was presiding, counsel requested “some time to talk to [Zunguza] and

conduct some investigation.” The IJ granted an additional week to file an asylum

application but denied counsel‟s request for a longer continuance.

At a hearing on May 14, 2010, Zunguza applied for asylum, withholding of

removal, and protection under the Convention Against Torture (CAT), alleging

persecution in Italy on the basis of his membership in a particular social group.1

According to Zunguza, he was born in Mozambique and moved to Italy in 2002. After

marrying an Italian national, he began working as a forklift operator in Parma for La

Giovane, a privately owned company. While working there, he witnessed racism against

“Black Africans” and eventually became their spokesman.

Zunguza allegedly organized several protests and strikes that slowed productivity

at La Giovane and caused the company to lose business. Presumably because the

1 Zunguza‟s attorney was not present at this hearing because of a scheduling conflict. The IJ warned Zunguza that if counsel was unable to appear at the merits hearing on June 18, 2010, Zunguza would have to proceed without counsel on that date. 3 company had ties to organized crime, the loss of business led to retaliation by the Mafia.

He allegedly was attacked again in December 2009, when he was punched in the stomach

and told to refrain from further protests. He purportedly was assaulted a final time in

February 2010. According to Zunguza, the attackers bound his legs, but he escaped

while they were opening the trunk of their car. He then left Parma for Milan, where he

spent several days before moving to Bologna for a week. After relocating to Treviso, he

came to the United States to avoid the Mafia‟s “extensive network of operators.”

Zunguza testified at his merits hearing on June 18, 2010. On direct examination,

he described his “negative experience” at La Giovane, where people with a “darker skin

complexion” were treated badly. Zunguza testified that the Mafia “used to attack [him],

they used to hit [him], they used to tie [his] feet, they used to break [his] foot, violent

things.” He claimed that he “tried to go” to other Italian cities, like “Florence or Rome or

Sicily,” but had failed because the Mafia had “an inside force inside the country that if

they want to find you, they‟ll find you anywhere.” Instead, he allegedly went to “Milan,

Bologna, . . . Treviso, Padua, and many others.” Zunguza also claimed to have

unsuccessfully sought protection at the Parma police station.

On cross-examination, Zunguza acknowledged that he could not prove his

attackers were members of the Mafia other than by speculating based on their

appearance. In addition, he conceded that his asylum application failed to mention that

he sought help from police. Zunguza added several facts on cross-examination, including

4 that he had been discovered by the Mafia in Milan, that he had gone to the police station

there, and that he had been followed on a train in Bologna.

The IJ ultimately found Zunguza‟s testimony not credible because it “was often at

variance with the information he provided in his asylum application and in variance with

his [own] testimony.” According to the IJ, specific information central to Zunguza‟s

claims was absent from his asylum application and his testimony on direct examination,

which had been “vague and generally unspecific.” The IJ also noted that Zunguza had

made several new claims on cross-examination, including “that . . . he specifically went

to police in Milan or that he was followed to Bologna by „mafia members‟ and . . . was

. . . attacked after he left Milan.” The IJ held that Zunguza was ineligible for either

asylum or withholding of removal because he had not demonstrated objective evidence of

past persecution or a well-founded fear of future persecution. The IJ also denied CAT

protection because Zunguza had not shown that the Italian government would fail to

protect him from the Mafia if he returned to Italy.

The BIA dismissed Zunguza‟s appeal on October 8, 2010. It affirmed the IJ‟s

adverse credibility finding in light of “the omission of material events from the

applicant‟s asylum application, and the lack of detail and specificity in that application

regarding the incidents that allegedly befell him in Italy.” Because Zunguza‟s testimony

had not been credible, the BIA concluded that he “did not meet his burden of proof for

asylum” or “the higher burden of proof for withholding of removal.” Finally, the BIA

5 denied Zunguza‟s claim for CAT protection because it was based on a complete “absence

of independent evidence.”

On January 6, 2011, Zunguza filed a timely motion to reopen proceedings, arguing

that his due process rights had been violated because the IJ had not given him enough

time to prepare his case. The motion was supported with a new, thirteen-page affidavit,

in which Zunguza provided more details about his alleged persecution in Italy.

The BIA denied Zunguza‟s motion on February 25, 2011, reasoning that he had

“not identified any error of fact or law in the [BIA‟s] previously detailed decision that

would alter” the adverse credibility finding. The BIA also found that he had not

“provided any further evidence that might have supported his claim that his application

for relief was denied because he did not have time to fully prepare for and support his

case.” According to the BIA, a “more detailed affidavit for the first time at [that] stage of

the proceedings” could not “explain the material omissions from [his] asylum

application.”

Zunguza filed a second motion to reopen on June 13, 2011, arguing that there had

been changed country conditions in Italy because “democratic uprisings in Tunisia,

Libya, Yemen, and other North African countries” had “caused a dramatic surge in North

African immigration to Italy, heightening anti-immigrant passions and violence in Italy

since January 2011.” Zunguza included two expert affidavits in support of his motion:

one by Dr. Maurizio Albahari, a professor of Anthropology at the University of Notre

6 Dame who specializes in immigration to Italy with a partial focus on organized crime,

and another by Dr. Marco Jacquemet, an Anthropology professor at the University of San

Francisco who specializes in criminal networks, migration, and racism in Italy. Zunguza

also submitted various news articles discussing immigration problems in Italy.

Zunguza‟s second motion to reopen was denied on July 13, 2011. The BIA began

by noting that the motion was both time- and number-barred, but it acknowledged that a

proper showing of changed circumstances constitutes an exception to the limitations on

filing a motion to reopen. The BIA concluded that, “[e]specially when considered in

light of the adverse credibility finding,” Zunguza had “not established changed country

conditions in Italy that would warrant an exception” to those limitations. Insofar as the

affidavits attested to an influx of immigrants into Italy and resulting ethnic intolerance,

those changes did not rise to the level of persecution, and Zunguza had not established

that the Italian government has condoned or acquiesced in the rise of organized crime.

The BIA also reasoned that the submitted news articles discussed only general conditions

of unrest and did not establish a fear of harm particular to Zunguza that was sufficient to

establish his eligibility for relief.

Zunguza filed a timely petition for review in this Court after each of the BIA‟s

three final orders, and we consolidated those petitions.

7 II

We have jurisdiction over Zunguza‟s petitions pursuant to 8 U.S.C. § 1252. In

exercising that jurisdiction, we consider only the BIA‟s rulings, but we review the IJ‟s

reasoning to the extent it was adopted by the BIA. Chavarria v. Gonzalez, 446 F.3d 508,

515 (3d Cir. 2006). We review legal conclusions de novo, Hua Wu v. Att’y Gen. of the

U.S., 571 F.3d 314, 317 (3d Cir. 2009), and assess factual findings, including credibility

determinations, under the deferential “substantial evidence” standard, Chavarria, 446

F.3d at 515, treating them as “conclusive unless any reasonable adjudicator would be

compelled to conclude to the contrary,” 8 U.S.C. § 1252(b)(4)(B).

III

A

We begin with Zunguza‟s first petition for review, which appeals the denial of his

applications for asylum, withholding of removal, and CAT protection. To be eligible for

asylum, Zunguza had to show that he was “unable or unwilling to return to . . . [Italy]

because of persecution or a well-founded fear of persecution on account of race, religion,

nationality, membership in a particular social group, or political opinion.” 8 U.S.C.

§ 1101(a)(42). To qualify for withholding of removal, he had to “establish by a „clear

probability‟ that [his] life or freedom would be threatened in the proposed country of

deportation.” Zubeda v. Ashcroft, 333 F.3d 463, 469 (3d Cir. 2003) (citing Janusiak v.

INS, 947 F.2d 46, 47 (3d Cir. 1991)). Finally, to warrant CAT protection, Zunguza had

8 to show “„that it [was] more likely than not that [he] would be tortured if removed to the

proposed country of removal.‟” Silva-Rengifo v. Att’y Gen. of the U.S., 473 F.3d 58, 64

(3d Cir. 2007) (quoting Sevoian v. Ashcroft, 290 F.3d 166, 174–75 (3d Cir. 2002)).

In support of his first petition for review, Zunguza offered nothing but his own

testimony and the statements in his asylum application. “The testimony of [an asylum]

applicant may be sufficient to sustain the applicant‟s burden without corroboration, but

only if [he] satisfies the trier of fact that [his] testimony is credible, is persuasive, and

refers to specific facts sufficient to demonstrate that [he] is a refugee.” 8 U.S.C.

§ 1158(b)(1)(B)(ii). The IJ‟s adverse credibility determination therefore was dispositive

of Zunguza‟s claims. See Tarrawally v. Ashcroft, 338 F.3d 180, 186 (3d Cir. 2003).

On appeal before the BIA, Zunguza argued that he did not have sufficient time to

submit supporting documentation. At a hearing on May 6, 2010, the IJ granted Zunguza

a one-week continuance to file an asylum application, but his counsel was denied

additional “time to talk to [Zunguza] and conduct some investigation.” According to

Zunguza, if he had been provided a longer continuance, he could have obtained hospital

records to corroborate his account.

An IJ “may grant a motion for continuance for good cause shown.” 8 C.F.R.

§ 1003.29. We have jurisdiction to review the denial of a continuance, Khan v. Att’y

Gen. of the U.S., 448 F.3d 226, 231 (3d Cir. 2006), and we do so for abuse of discretion,

Ponce-Leiva v. Ashcroft, 331 F.3d 369, 377 (3d Cir. 2003). Yet “„[t]he question of

9 whether denial of a continuance in an immigration proceeding constitutes an abuse of

discretion cannot be decided through the application of bright-line rules; it must be

resolved on a case by case basis according to the facts and circumstances of each case.‟”

Id. (quoting Baires v. INS, 856 F.2d 89, 91 (9th Cir. 1988)).

We find no abuse of discretion in the IJ‟s decision to deny Zunguza‟s attorney‟s

request for additional time. As the IJ noted at the May 6 hearing, Zunguza had received

four separate continuances without having filed an asylum application. This was ample

time for him at least to request documentation to corroborate his claims, regardless of

whether he was represented by counsel. Cf. id. at 376–77 (An asylum applicant‟s

inability to obtain counsel does not constitute a violation of his rights to counsel or due

process.). Zunguza also had nearly a month after obtaining counsel to request

corroborating evidence,2 but he failed to submit any such documentation at his merits

hearing on June 18, 2010. Finally, Zunguza argues that more time was needed to prepare

a detailed asylum application,3 but his month‟s worth of continuances was sufficient for

him to recall at least the central facts of his claim. Accordingly, we will deny Zunguza‟s

first petition for review.4

2 At the hearing on May 14, 2010, the IJ ordered that documentary evidence be filed by June 4, 2010. 3 Zunguza similarly argues that he was denied due process when the IJ failed to grant him ample time to prepare his case. Zunguza did not make this argument in his direct appeal to the BIA. Instead, Zunguza raised the argument only in his first motion to reopen proceedings. See infra Part III.B. His due process argument therefore is not within the scope of his first petition for review. 10 B

Zunguza‟s second petition appeals the BIA‟s denial of his first motion to reopen

proceedings. That motion alleged that his due process rights were violated because, in

rejecting his counsel‟s request for a longer continuance, the IJ did not afford Zunguza

sufficient time to prepare his case. In support of his motion, Zunguza attached a new,

thirteen-page affidavit elaborating on his hearing testimony and asylum petition.

We review the denial of a motion to reopen for abuse of discretion. Pllumi v. Att’y

Gen. of the U.S., 642 F.3d 155, 158 (3d Cir. 2011). The BIA abuses its discretion only

when it acts in a manner that is “„arbitrary, irrational, or contrary to the law.‟” Guo v.

Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004) (quoting Tipu v. INS, 20 F.3d 580, 582 (3d

Even if we were to reach the issue, however, we would find that Zunguza failed to establish a denial of due process. To do so, Zunguza must show that he was denied “a full and fair hearing,” that is, a “reasonable opportunity to present evidence on [his] behalf.” Cham v. Att’y Gen. of the U.S., 445 F.3d 683, 691 (3d Cir. 2006) (citation and internal quotation marks omitted). Our review of the record reveals that Zunguza was afforded such a “reasonable opportunity.” And even if he received insufficient process, he cannot show the “substantial prejudice” required for a successful due process challenge. See Jarbough v. Att’y Gen. of the U.S., 483 F.3d 184, 192 (3d Cir. 2007). To this day, Zunguza has not offered evidence sufficient to establish his eligibility for asylum, withholding of removal, or CAT protection. He therefore has not demonstrated prejudice resulting from the IJ‟s denial of his request for an additional continuance. 4 At oral argument, Zunguza also claimed that the IJ‟s credibility determination was flawed because it relied solely on “omissions” in his asylum application. As Zunguza made scant reference to such an argument in his opening brief, this issue was waived. Cf. United States v. Hoffecker, 530 F.3d 137, 162 (3d Cir. 2008) (finding that a “one-sentence footnote falls far short of meeting the requirement that an appellant raise an issue in his opening brief or else waive the issue on appeal”). 11 Cir. 1994)). “As a general rule, motions to reopen are granted only under compelling

circumstances,” because “„every delay works to the advantage of the deportable alien

who wishes merely to remain in the United States.‟” Id. at 561–62 (quoting INS v.

Doherty, 502 U.S. 314, 323 (1992)).

The BIA did not abuse its discretion by denying Zunguza‟s motion. “A motion to

reopen proceedings shall state the new facts that will be proven at a hearing to be held if

the motion is granted and shall be supported by affidavits or other evidentiary material.”

8 C.F.R. § 1003.2(c)(1). “A motion to reopen proceedings shall not be granted unless it

appears to the [BIA] that evidence sought to be offered is material and was not available

and could not have been discovered or presented at the former hearing.” Id. The motion

also must demonstrate prima facie eligibility for asylum. See Guo, 386 F.3d at 563.

Zunguza‟s motion to reopen did not raise material, newly discovered facts that

would warrant reopening his case. He submitted just one affidavit, in which he expanded

on his own statements in his prior asylum application and testimony before the IJ. These

facts “could . . . have been discovered or presented at the former hearing.” 8 C.F.R. §

1003.2(c)(1). In addition, Zunguza‟s self-serving statements, prepared long after his

application was denied, were insufficient to explain the omissions and inconsistencies

that resulted in the adverse credibility finding. Zunguza‟s affidavit, therefore, was an

insufficient basis on which to grant his motion to reopen.

12 Nor did Zunguza‟s due process argument warrant reopening his case, as it relied

only on facts that could have been presented in prior proceedings. Zunguza already had

argued that the IJ abused her discretion by not affording him enough time to prepare his

case, and his “due process argument merely recast[] his abuse-of-discretion argument in

constitutional terms and c[ould] be denied for the reasons already stated.” Khan, 448

F.3d at 236. Therefore, we will deny Zunguza‟s second petition for review.

C

Zunguza‟s third petition appeals the BIA‟s denial of his second motion to reopen.

Generally, an alien may file only one motion to reopen, and that motion must be filed

within ninety days of the BIA‟s final order. 8 C.F.R. § 1003.2(c)(2). These limitations

do not apply, however, for motions based on changed country conditions arising in the

country to which deportation has been ordered. Id. § 1003.2(c)(3)(ii). Because

Zunguza‟s second motion was filed more than ninety days after the BIA‟s October 8,

2010, order, it had to be based on previously unavailable, material evidence of changed

conditions in Italy.

Zunguza‟s motion pointed to the “recent tumult in North Africa and the migration

of thousands of individuals fleeing the uprisings in Libya, Tunisia, Yemen and other such

countries, and seeking shelter and aid in Italy,” which he claimed “dramatically

heightened anti-immigrant passions and racial animosity in Italy.” Br. of Appellant at 22.

The BIA concluded that these purported changes did not warrant reopening his case.

13 The BIA‟s findings are supported by substantial evidence in the record. First,

Zunguza has not established changed conditions that would demonstrate prima facie

eligibility for asylum, withholding of removal, or CAT protection. See Guo, 386 F.3d at

563. He points to a recent influx of African immigrants and a corresponding rise in anti-

immigrant violence, but this “„mere generalized lawlessness and violence between

diverse populations, of the sort which abounds in numerous countries and inflicts misery

upon millions of innocent people daily around the world,‟” is not sufficient for relief,

Konan v. Att’y Gen., 432 F.3d 497, 506 (3d Cir. 2005) (quoting Abdille v. Ashcroft, 242

F.3d 477, 494–95 (3d Cir. 2001)), because such racism and discrimination do not rise to

the level of systematic and pervasive persecution, Chen v. Ashcroft, 381 F.3d 221, 233

(3d Cir. 2004). And while Zunguza has submitted evidence of the Mafia‟s persistent

presence in Italy and its maltreatment of Italian workers, he has failed to establish that

those acts are “committed by the government or forces the government is either „unable

or unwilling‟ to control.” Lie v. Ashcroft, 396 F.3d 530, 537 (3d Cir. 2005) (quoting

Abdulrahman v. Ashcroft, 330 F.3d 587, 592 (3d Cir. 2003)) (internal quotation marks

omitted). Absent evidence of changed country conditions, the BIA acted within its

discretion when it denied Zunguza‟s motion.

IV

For the reasons stated, we will deny Zunguza‟s petitions for review.