Case: 18-10036 Date Filed: 08/20/2018 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-10036 Non-Argument Calendar ________________________
Agency No. A208-195-478
ZENAIDA OROZCO CRUZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the Board of Immigration Appeals ________________________
(August 20, 2018)
Before WILSON, JORDAN, and ANDERSON, Circuit Judges.
PER CURIAM: Case: 18-10036 Date Filed: 08/20/2018 Page: 2 of 8
Zenaida Orozco Cruz seeks review of the Board of Immigration Appeals’
(“BIA”) final order affirming the Immigration Judge’s (“IJ”) denial of asylum
pursuant to the Immigration and Nationality Act (“INA”) § 208(b)(1)(A), 8
U.S.C. § 1158(b)(1)(A), and denying Orozco’s request for a new hearing before a
different IJ. On appeal, Orozco argues that the IJ abused his discretion by
continuing her case for three months as opposed to four due to maternity leave.
Orozco also argues that the IJ’s demeanor and interruptions at trial denied her due
process of the law. Finally, Orozco contends that BIA failed to properly analyze
her asylum claim, which led to the eventual denial of her application.
I.
The IJ’s decision to deny the petitioner’s motion for a continuance is
reviewed for an abuse of discretion. Zafar v. U.S. Att’y Gen., 461 F.3d 1357, 1362
(11th Cir. 2006). The grant of a continuance is within the IJ’s broad discretion,
and an IJ may grant a continuance for “good cause shown.” Id.; 8 C.F.R.
§ 1003.29. According to BIA precedent, “an immigration judge’s decision
denying [a] motion for continuance will not be reversed unless the alien establishes
that [the] denial caused h[er] actual prejudice and harm and materially affected the
outcome of h[er] case.” In re Sibrun, 18 I. & N. Dec. 354, 356–57 (BIA 1983).
2 Case: 18-10036 Date Filed: 08/20/2018 Page: 3 of 8
Here, we need not address whether the IJ abused its broad discretion,
because Orozco has failed to show actual prejudice. Zafar, 461 F.3d at 1362; In
re Sibrun, 18 I. & N. Dec. at 356–57.
II.
The Fifth Amendment entitles petitioners in removal proceedings to due
process of law. Lapaix v. U.S. Att’y Gen., 605 F.3d 1138, 1143 (11th Cir. 2010).
Due process requires that an alien be given notice and an opportunity to be heard in
their removal proceedings. Tang v. U.S. Att’y Gen., 578 F.3d 1270, 1275 (11th
Cir. 2009). To establish a due process violation, the petitioner must show that she
was deprived of liberty without due process of the law and that the errors caused
her substantial prejudice. Lapaix, 605 F.3d at 1143. “To show substantial
prejudice, an alien must demonstrate that, in the absence of the alleged violations,
the outcome of the proceeding would have been different.” Id.
The respondent in an immigration proceeding should expect dignity, respect,
courtesy, and fairness in a hearing before an IJ. In re Y-S-L-C-, 26 I. & N. Dec.
688, 690 (BIA 2015). Conduct by the IJ that can be perceived as bullying or
hostile can have a chilling effect on the respondent’s testimony, and thereby limit
her ability to fully develop the facts of her claim. Id. An IJ may, however,
exercise their independent judgment and discretion, and take such action within
3 Case: 18-10036 Date Filed: 08/20/2018 Page: 4 of 8
their authority under the INA that is appropriate and necessary for the disposition
of the case. 8 C.F.R. 1003.10(b).
Here, the IJ did not violate Orozco’s due process rights at her merit hearing.
The IJ prevented Orozco from answering whether she appealed the juvenile
tribunal’s decision awarding custody of her sister to her aunt. This did not result in
substantial prejudice because Orozco had already been afforded the opportunity to
explain the nature of the dispute between herself and her aunt. The IJ further only
interrupted Orozco’s counsel to ensure that the line of questioning remained
relevant to her removal claim, which was within his discretion. 8 C.F.R.
1003.10(b).
III.
We review the BIA’s decision as the final judgment, unless the BIA
expressly adopted the IJ’s decision. Kazemzadeh v. U.S. Att’y Gen., 577 F.3d
1341, 1350 (11th Cir. 2009). Where the BIA agrees with the IJ’s reasoning, we
will review the decisions of both the BIA and the IJ to the extent of the agreement.
Id. Here, because the BIA agreed with the IJ’s reasoning as to Orozco’s
application for asylum, we will review the decisions of both the IJ and the BIA as
to that finding.
We review questions of law de novo. Malu v. U.S. Att’y Gen., 764 F.3d
1282, 1286 (11th Cir. 2014). We review administrative findings of fact under the
4 Case: 18-10036 Date Filed: 08/20/2018 Page: 5 of 8
substantial-evidence test. Antipova v. U.S. Att’y Gen., 392 F.3d 1259, 1261 (11th
Cir. 2004). Under the substantial-evidence test, we must affirm the BIA’s
decision “if it is supported by reasonable, substantial, and probative evidence on
the record considered as a whole.” Id. (internal quotations omitted). We “view the
record evidence in the light most favorable to the agency’s decision and draw all
reasonable inferences in favor of that decision.” Adefemi v. Ashcroft, 386 F.3d
1022, 1026–27 (11th Cir. 2004) (en banc). We will not reverse unless the evidence
compels a reasonable fact finder to find otherwise. Antipova, 392 F.3d at 1261.
Under this highly deferential standard of review, we may not reweigh the evidence
from scratch. Id.
The government has the discretion to grant asylum if the alien establishes
that he is a “refugee.” INA § 208(b)(1)(A), 8 U.S.C. § 1158(b)(1)(A). A refugee
is a person “who is unable or unwilling to return to, and is unable or unwilling to
avail himself or herself of the protection of, [his or her country of nationality]
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.”
INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). Generally, an applicant for
asylum must establish either (1) past persecution on account of a protected ground,
or (2) a well-founded fear of future persecution on account of a protected ground.
Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1230–31 (11th Cir. 2005). The
5 Case: 18-10036 Date Filed: 08/20/2018 Page: 6 of 8
applicant must demonstrate that one of those protected grounds “was or will be at
least one central reason for persecuting” him or her. INA § 208(b)(1)(B)(i), 8
U.S.C. § 1158(b)(1)(B)(i) (emphasis added).
Free access — add to your briefcase to read the full text and ask questions with AI
Case: 18-10036 Date Filed: 08/20/2018 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-10036 Non-Argument Calendar ________________________
Agency No. A208-195-478
ZENAIDA OROZCO CRUZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the Board of Immigration Appeals ________________________
(August 20, 2018)
Before WILSON, JORDAN, and ANDERSON, Circuit Judges.
PER CURIAM: Case: 18-10036 Date Filed: 08/20/2018 Page: 2 of 8
Zenaida Orozco Cruz seeks review of the Board of Immigration Appeals’
(“BIA”) final order affirming the Immigration Judge’s (“IJ”) denial of asylum
pursuant to the Immigration and Nationality Act (“INA”) § 208(b)(1)(A), 8
U.S.C. § 1158(b)(1)(A), and denying Orozco’s request for a new hearing before a
different IJ. On appeal, Orozco argues that the IJ abused his discretion by
continuing her case for three months as opposed to four due to maternity leave.
Orozco also argues that the IJ’s demeanor and interruptions at trial denied her due
process of the law. Finally, Orozco contends that BIA failed to properly analyze
her asylum claim, which led to the eventual denial of her application.
I.
The IJ’s decision to deny the petitioner’s motion for a continuance is
reviewed for an abuse of discretion. Zafar v. U.S. Att’y Gen., 461 F.3d 1357, 1362
(11th Cir. 2006). The grant of a continuance is within the IJ’s broad discretion,
and an IJ may grant a continuance for “good cause shown.” Id.; 8 C.F.R.
§ 1003.29. According to BIA precedent, “an immigration judge’s decision
denying [a] motion for continuance will not be reversed unless the alien establishes
that [the] denial caused h[er] actual prejudice and harm and materially affected the
outcome of h[er] case.” In re Sibrun, 18 I. & N. Dec. 354, 356–57 (BIA 1983).
2 Case: 18-10036 Date Filed: 08/20/2018 Page: 3 of 8
Here, we need not address whether the IJ abused its broad discretion,
because Orozco has failed to show actual prejudice. Zafar, 461 F.3d at 1362; In
re Sibrun, 18 I. & N. Dec. at 356–57.
II.
The Fifth Amendment entitles petitioners in removal proceedings to due
process of law. Lapaix v. U.S. Att’y Gen., 605 F.3d 1138, 1143 (11th Cir. 2010).
Due process requires that an alien be given notice and an opportunity to be heard in
their removal proceedings. Tang v. U.S. Att’y Gen., 578 F.3d 1270, 1275 (11th
Cir. 2009). To establish a due process violation, the petitioner must show that she
was deprived of liberty without due process of the law and that the errors caused
her substantial prejudice. Lapaix, 605 F.3d at 1143. “To show substantial
prejudice, an alien must demonstrate that, in the absence of the alleged violations,
the outcome of the proceeding would have been different.” Id.
The respondent in an immigration proceeding should expect dignity, respect,
courtesy, and fairness in a hearing before an IJ. In re Y-S-L-C-, 26 I. & N. Dec.
688, 690 (BIA 2015). Conduct by the IJ that can be perceived as bullying or
hostile can have a chilling effect on the respondent’s testimony, and thereby limit
her ability to fully develop the facts of her claim. Id. An IJ may, however,
exercise their independent judgment and discretion, and take such action within
3 Case: 18-10036 Date Filed: 08/20/2018 Page: 4 of 8
their authority under the INA that is appropriate and necessary for the disposition
of the case. 8 C.F.R. 1003.10(b).
Here, the IJ did not violate Orozco’s due process rights at her merit hearing.
The IJ prevented Orozco from answering whether she appealed the juvenile
tribunal’s decision awarding custody of her sister to her aunt. This did not result in
substantial prejudice because Orozco had already been afforded the opportunity to
explain the nature of the dispute between herself and her aunt. The IJ further only
interrupted Orozco’s counsel to ensure that the line of questioning remained
relevant to her removal claim, which was within his discretion. 8 C.F.R.
1003.10(b).
III.
We review the BIA’s decision as the final judgment, unless the BIA
expressly adopted the IJ’s decision. Kazemzadeh v. U.S. Att’y Gen., 577 F.3d
1341, 1350 (11th Cir. 2009). Where the BIA agrees with the IJ’s reasoning, we
will review the decisions of both the BIA and the IJ to the extent of the agreement.
Id. Here, because the BIA agreed with the IJ’s reasoning as to Orozco’s
application for asylum, we will review the decisions of both the IJ and the BIA as
to that finding.
We review questions of law de novo. Malu v. U.S. Att’y Gen., 764 F.3d
1282, 1286 (11th Cir. 2014). We review administrative findings of fact under the
4 Case: 18-10036 Date Filed: 08/20/2018 Page: 5 of 8
substantial-evidence test. Antipova v. U.S. Att’y Gen., 392 F.3d 1259, 1261 (11th
Cir. 2004). Under the substantial-evidence test, we must affirm the BIA’s
decision “if it is supported by reasonable, substantial, and probative evidence on
the record considered as a whole.” Id. (internal quotations omitted). We “view the
record evidence in the light most favorable to the agency’s decision and draw all
reasonable inferences in favor of that decision.” Adefemi v. Ashcroft, 386 F.3d
1022, 1026–27 (11th Cir. 2004) (en banc). We will not reverse unless the evidence
compels a reasonable fact finder to find otherwise. Antipova, 392 F.3d at 1261.
Under this highly deferential standard of review, we may not reweigh the evidence
from scratch. Id.
The government has the discretion to grant asylum if the alien establishes
that he is a “refugee.” INA § 208(b)(1)(A), 8 U.S.C. § 1158(b)(1)(A). A refugee
is a person “who is unable or unwilling to return to, and is unable or unwilling to
avail himself or herself of the protection of, [his or her country of nationality]
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.”
INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). Generally, an applicant for
asylum must establish either (1) past persecution on account of a protected ground,
or (2) a well-founded fear of future persecution on account of a protected ground.
Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1230–31 (11th Cir. 2005). The
5 Case: 18-10036 Date Filed: 08/20/2018 Page: 6 of 8
applicant must demonstrate that one of those protected grounds “was or will be at
least one central reason for persecuting” him or her. INA § 208(b)(1)(B)(i), 8
U.S.C. § 1158(b)(1)(B)(i) (emphasis added). The fact that a persecutor targets a
family member as a means to an end is not, by itself, sufficient to establish a claim,
especially if the end is not connected to another protected ground. In re L-E-A-, 27
I. & N. Dec. 40, 45–47 (BIA 2017) (cartel’s objective to increase profits by selling
drugs in a family owned store was not based on a protected ground because
biological ties, historical status, and other features unique to that family unit was,
at most, incidental to the cartel’s real motive).
An applicant for asylum who alleges persecution by a private actor must
prove that she is unable to avail herself of the protection of her home country by
presenting evidence that she reported the persecution to local government
authorities or that it would have been useless to do so. Ayala v. U.S. Att’y Gen.,
605 F.3d 941, 950 (11th Cir. 2010). Although an applicant’s failure to report
persecution to the local government authorities is generally fatal to an asylum
claim, the reporting requirement can be excused where the petitioner demonstrates
that those authorities would have been unable or unwilling to protect her. Id.
A showing of past persecution creates a rebuttable presumption of a well-
founded fear of future persecution. Sepulveda, 401 F.3d at 1231. However, an
alien who has not shown past persecution still may be entitled to asylum or
6 Case: 18-10036 Date Filed: 08/20/2018 Page: 7 of 8
withholding of removal if he can demonstrate a future threat in his country to his
life or freedom on a protected ground. 8 C.F.R. § 208.13(b)(2). To establish
eligibility for asylum based on a well-founded fear of future persecution, the
applicant must prove (1) a “subjectively genuine and objectively reasonable” fear
of persecution that is (2) on account of a protected ground. Al Najjar v. Ashcroft,
257 F.3d 1262, 1287, 1289 (11th Cir. 2004) (en banc). “The subjective component
is generally satisfied by the applicant’s credible testimony that he or she genuinely
fears persecution,” while “the objective prong can be fulfilled either by
establishing past persecution or that he or she has a good reason to fear future
persecution.” Id. at 1289 (quotation omitted).
An applicant, who has established refugee status based on past persecution,
may qualify for “humanitarian asylum” without establishing a well-founded fear of
future persecution based on: (1) the possibility of “other serious harm” in the
future, or (2) the severity of the past persecution. Mehmeti v. U.S. Att’y Gen., 572
F.3d 1196, 1200 (11th Cir. 2009).
Here, substantial evidence supports the BIA and IJ’s conclusion that the
threat Orozco’s aunt levied against Orozco was motivated by a personal dispute,
namely, money, and was not based on a protected ground. In re L-E-A-, 27 I. & N.
Dec. at 45–47. Additionally, Orozco has failed to show that the Guatemalan
government was unable or unwilling to assist her, particularly because Orozco had
7 Case: 18-10036 Date Filed: 08/20/2018 Page: 8 of 8
previously availed herself of the Guatemalan government’s protections regarding
family issues. Ayala, 605 F.3d at 950. Orozco cannot establish that she would be
subject to future persecution based on her aunt’s threat because the BIA’s finding
that Orozco’s aunt’s threat was based on a personal dispute, and that Orozco did
not show that the government would be unwilling to protect her, extends to any
claim of future persecution. Al Najjar, 257 F.3d at 1287, 1289.
Substantial evidence supports the BIA and IJ’s conclusion that the
Guatemalan government was willing to protect Orozco from the physical abuse
that she endured as a child. Specifically, a Guatemalan court helped Orozco
relocate to a children’s shelter after it was made aware of the abuse that Orozco
endured. Additionally, Orozco is now an adult, and her father is dead, and, thus,
any fear of future persecution from her parents would be objectively unreasonable.
Finally, Orozco is not entitled to humanitarian asylum because, as analyzed
above, she has not established refugee status based on past persecution. Mehmeti,
572 F.3d at 1200. Accordingly, we deny the petition for review.
PETITION DENIED.