Luis Emilio Perez Muniz v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 08-1444
_____________
LUIS EMILIO PEREZ MUNIZ,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
______________
On Petition for Review of an Order of the
United States Department of Justice
Board of Immigration Appeals
(BIA 1:A72-381-619)
Immigration Judge: Honorable Annie S. Garcy
_______________
Argued January 26, 2010
Before: RENDELL and JORDAN, Circuit Judges,
and PADOVA,* Senior District Judge.
(Filed: February 8, 2010)
_______________
Anayancy R. Houseman
Francis X. Geier [ARGUED]
453 Westminster Avenue
Elizabeth, NJ 07208
Counsel for Petitioner
_______________
*Honorable John R. Padova, United States District Court Senior Judge for the Eastern
District of Pennsylvania, sitting by designation.

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Perez’s initial removal petition lists him as having entered the United States on or1
about September 15, 1991, however, Perez amended his date of last entry as
2
Gregory G. Katsas
Richard M. Evans
Sharon Clay [ARGUED]
Brooke M. Maurer
office of Immigration Litigation
Civil Division
U.S. Department of Justice
P.O. Box 878, Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
_______________
OPINION OF THE COURT
_______________
JORDAN, Circuit Judge.
Luis Emilio Perez Muniz (“Perez”) petitions for review of a final order of the
Board of Immigration Appeals (“BIA”) denying his application for asylum, withholding
of removal, and relief under the United Nations Convention Against Torture (“CAT”).
Perez claims that, if he is returned to his native Guatemala, he will face physical violence,
including murder, like his father and uncles. Despite our sympathy for the suffering of
Perez’s family, we must deny his petition.
I. Background
A. Perez’s Application for Asylum
Perez, a thirty-one year old, unmarried citizen of Guatemala, entered the United
States illegally in 1989 at the age of twelve. He first applied for asylum in 1994, and his1

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September 15, 1989 and Perez, his mother, and his sister testified that he entered the
country in 1989.
3
application was referred to an immigration judge on June 11, 2001. Perez was
subsequently charged with being removable as an illegal alien. He conceded removability
but sought relief from removal by applying for asylum, withholding of removal, and
protection under the CAT. He also sought voluntary departure in the event his application
was denied.
The case was postponed and continued for several years and, on October 11, 2005,
was reassigned to a new Immigration Judge (“IJ”) who scheduled it for an April 4, 2006
hearing. At the hearing, Perez withdrew his application for asylum, and the IJ continued
the case until May 9, 2006 to allow counsel time to determine whether Perez was eligible
for relief under the Nicaraguan Adjustment and Central American Relief Act
(“NACARA”).
On May 9, 2006, counsel for Perez informed the IJ that Perez was ineligible for
NACARA relief and sought to reinstate his initial asylum application. The IJ scheduled a
hearing on the merits of Perez’s application for May 23, 2006, only two weeks later, out
of concern for the Department of Justice’s case completion goals. The IJ asked counsel
whether she objected to the scheduling and counsel replied that she did not. The IJ made
clear that, although she sought to resolve Perez’s case by June in accordance with the case
completion goals, “[i]f the case cannot be finished before the end of June then we won’t

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FARC is the acronym for the Fuerzas Armadas Revolucianarias de Colombia, a leftist2
guerilla revolutionary group active throughout much of Colombia. See Gomez-Zuluaga v.
Att’y Gen., 527 F.3d 330, 335 (3d Cir. 2008). At the hearing, the IJ noted that she had
only heard of FARC in connection with Colombia and counsel for Perez admitted that she
was not aware of anything linking FARC’s activities to Guatemala, other than possibly
drug trafficking. The country report on Guatemala in the record does not mention a
FARC presence in Guatemala.
4
finish it before the end of June because [Perez] need[s] to be afforded with a fair hearing
... .” (App. at 158.) The IJ also told Perez that if he and his counsel were able to
convince the court that the scheduling is “hurting [Perez’s] case,” she would “have an
open mind about [rescheduling].” (App. at 160.)
B. The May 23, 2006 Hearing
On May 23, 2006, the IJ held the hearing on Perez’s application for asylum,
withholding of removal, relief under CAT, and voluntary departure in the alternative.
Perez, his mother, and his sister testified concerning the kidnapping and murder of
Perez’s father and uncles in Guatemala.
Perez’s mother testified that Perez’s father had been in the Guatemalan army
during the Guatemalan civil war, and that he retired in approximately 1983. On
September 15, 1988, he was kidnapped by two men who came to the family home. Two
other men took Perez’s mother into the home and threatened her and her children should
she report the kidnapping. The men left a note that read “hooray for the FARC.” Perez’s
mother did not know who the men were and never learned what “FARC” meant, although
she suspected it referred to guerillas.2

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5
Perez’s father returned a month later; his right hand had been mutilated, with two
of his fingers cut off. Immediately thereafter, Perez and his sister, mother, and father fled
Guatemala for Mexico, whereupon their family home in Guatemala was burned down.
Perez’s mother eventually sent Perez and his sister back to Guatemala to live with their
godmother. Perez’s father and mother continued on to the United States, though Perez’s
father was deported to Guatemala, while Perez’s mother continued on to New Jersey.
Perez’s mother worked in New Jersey with the hope of bringing her children to the United
States to join her, which she eventually did.
Perez’s mother spoke with Perez’s father only twice before she learned from her
daughter in 1998 that he had been killed in Guatemala. Perez’s mother testified that she
knew nothing about Perez’s father’s activities between 1988 and 1998. Additionally,
Perez’s mother learned that Perez’s uncles, who had also served in the military, were
killed, although she testified that she knew nothing regarding the circumstances of their
murders. Perez’s mother expressed fear that, should her son return to Guatemala, he
would suffer the same fate as his father.
Perez’s sister also testified concerning the murder of her father. She testified that
she did not know who committed the murder. She returned to Guatemala in 1998,
approximately six months after her father was murdered, to identify the body and to
obtain information from the police concerning their investigation into the murder. The
police exhumed the body so that she could identify it. Perez’s sister received two

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6
anonymous notes at her hotel, warning her to “be careful what you do” and threatening
that “if you want to know what happened we will let you know exactly what happened.”
(App. at 285.) She informed the police of the notes, and, although they provided her with
police protection, they suggested that she leave the country in light of the threats. She has
not contacted the police to learn the status of the investigation, nor has she received any
notice that the investigation has been resolved. Like her mother, Perez’s sister fears that,
if her brother were to return to Guatemala, he would suffer the same fate as their father.
Perez also testified at his hearing. Like his mother and sister, Perez testified that
he does not know who killed his father or his uncles and that he has not made any efforts
to contact the police, or anyone else in Guatemala, for more information. However, he
testified that he fears returning to Guatemala because he fears that whoever killed his
father and uncles would try to kill him as well.
C. The IJ and BIA’s Decisions
In an oral decision, the IJ denied Perez’s application for asylum, withholding of
removal and relief under CAT, but granted his petition for voluntary departure. The IJ
found that Perez’s mother and sister, and Perez himself, testified credibly as to the
kidnapping and murder of Perez’s father and uncles. But she noted that “there is a gaping
hole [as to] who it is that the respondent actually fears” which “cannot be filled because
none of the family can identify [who is responsible for the murder].” (App. at xviii.) She
added, “[w]ithout knowing who it might have been who committed the murder, ... the

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We have appellate jurisdiction to review final orders of removal pursuant to 8 U.S.C.3
§ 1252.
7
court cannot link the murder to the family as a potential social group, much less to the
respondents race, religion, nationality, or even political opinion that might have been
attributed to him as a result of his family membership ... .” (App. at xix.) Furthermore,
the IJ indicated that the fact that the police were investigating the murder and went so far
as to exhume the father’s body so that Perez’s sister could identify it suggests that the
Guatemalan government was not “unable or unwilling to control” whomever murdered
Perez’s father. (App. at xviii.) Ultimately, the IJ concluded that Perez lacked proof as to
the identity and motive of the murderers of his father and uncles, and, thus, could not
establish persecution as required to prevail on his application.
Perez appealed to the BIA. In a per curiam opinion, the BIA accepted the IJ’s
finding of facts and “adopt[ed] and affirm[ed] her comprehensive decision,” noting the
considerable uncertainty as to who murdered Perez’s father, why they murdered Perez’s
father, and the extent of any connection between the father’s kidnapping in 1988 and his
murder ten years later. (App. at iii.) Perez then petitioned our Court for review.
II. Discussion3
A. The IJ’s Determination is Supported by Substantial Evidence
The IJ expressed sympathy for Perez’s situation but concluded that, in the absence
of evidence as to the identity and motives of the murderer of Perez’s father, Perez could

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8
not establish that he would suffer persecution upon return to Guatemala as a result of
race, religion, nationality, membership in a particular social group, or political opinion.
Perez argues that the IJ ignored evidence that he “had a well-founded fear of persecution
because of his membership in a particular social group, i.e., children of members of the
Guatemalan military,” and that he possesses a “well-founded fear of persecution should
he be removed to Guatemala due to the political opinion that would be imputed to him by
the Guatemalan guerillas as a supporter of the Guatemalan government due to his father’s
service in the Guatemalan military.” (Petitioner’s Op. Br. at 2-3.) He relies heavily on
his mother’s testimony, which, according to Perez, established that his family was
“targeted for persecution by the guerillas in Guatemala due to their service in the
Guatemalan military during the Guatemalan Civil War.” (Id. at 12.)
“Where, as here, the BIA adopts and affirms the decision of the IJ, as well as
provides its own reasoning for its decision, the Court reviews both the decisions of the IJ
and the BIA.” Hashmi v. Att’y Gen., 531 F.3d 256, 259 (3d Cir. 2008). An IJ’s factual
determinations must be upheld if supported by substantial evidence, INS v.
Elias-Zacarias, 502 U.S. 478, 481 (1992), while questions of law are reviewed de novo,
Borges v. Gonzales, 402 F.3d 398, 404 (3d Cir. 2005). “Findings of past and future
persecution are factual determinations and are accordingly subject to ... deferential
review.” Al-Fara v. Gonzales, 404 F.3d 733, 738 (3d Cir. 2005). Accordingly, the IJ’s
determination that Perez did not establish a well-founded fear of future persecution “can

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9
be reversed only if the evidence presented by [Perez] was such that a reasonable
factfinder would have to conclude that the requisite fear of persecution existed.” See
Elias-Zacarias, 502 U.S. at 481; see also Singh v. Gonzales, 406 F.3d 191, 195 (3d Cir.
2005).
Perez seeks asylum, withholding of removal and relief under the CAT. The
Attorney General may grant asylum to an alien who qualifies as a “refugee,” defined by
the Immigration and Nationality Act as “any person who is outside any country of such
person’s nationality ... and who is unable or unwilling to return to, and is unable or
unwilling to avail himself or herself of the protection of, that country 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),
1158(b)(1). “To establish eligibility for asylum, an applicant must demonstrate past
persecution by substantial evidence or a well-founded fear of persecution that is both
subjectively and objectively reasonable.” Singh, 406 F.3d at 195; see also Sheriff v. Att’y
Gen., 587 F.3d 584, 589 (3d Cir. 2009) (“A refugee is a ‘person unable or unwilling to
return to the country of that person’s nationality or habitual residence because of past
persecution or because of a well-founded fear of future persecution on account of h[er]
race, religion, nationality, membership in a particular social group, or political opinion.’”
(quoting Gao v. Ashcroft, 299 F.3d 266, 271-72 (3d Cir. 2002) (alteration in original))).
The alien seeking asylum bears the burden of establishing that “race, religion, nationality,

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10
membership in a particular social group, or political opinion was or will be at least one
central reason for persecuting the applicant.” 8 U.S.C § 1158(b)(1)(B)(i); see also 8
C.F.R. § 1208.13. An alien can also satisfy his burden of proof by establishing
persecution on account of a political opinion imputed to him by the foreign government.
Lukwago v. Ashcroft, 329 F.3d 157, 181 (3d Cir. 2003); see also Chavarria v. Gonzales,
446 F.3d 508 (3d Cir. 2006). The persecution must have been “committed either by the
government or by forces that the government is either unable or unwilling to control.”
Mulanga v. Ashcroft, 349 F.3d 123, 132 (3d Cir. 2003); see also Lie v. Ashcroft, 396 F.3d
530, 537 (3d Cir. 2005). “[A]lthough an applicant is not required to provide direct proof
of his persecutor’s motives, ‘he must provide some evidence of it, direct or
circumstantial.’” Lukwago, 329 F.3d at 170 (quoting Elias-Zacarias, 502 U.S. at 483)
(emphasis in original).
An alien is entitled to withholding of removal to a country “if the Attorney General
decides that the alien’s life or freedom would be threatened in that country because of the
alien’s race, religion, nationality, membership in a particular social group, or political
opinion.” 8 U.S.C. § 1231(b)(3). Withholding of removal is only available if the alien
meets a stricter standard than asylum, namely whether “it is ‘more likely than not’ that he
or she will be persecuted on account of race, religion, nationality, membership in a
particular social group, or political opinion if deported to his or her home country.”
Singh, 406 F.3d at 196. “Given this higher standard, an applicant who does not qualify

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11
for asylum also does not qualify for withholding of removal.” Guo v. Ashcroft, 386 F.3d
556, 561 n.4 (3d Cir. 2004).
In order to be eligible for protection under the CAT, an applicant must establish
that “it is more likely than not that he will be tortured if removed.” Lukwago, 329 F.3d at
182-83. “The CAT does not require a showing that the torture is on account of any
protected ground, but only applies to torture that ‘is inflicted by or at the instigation of or
with the consent or acquiescence of a public official or other person acting in an official
capacity.’” Id. at 183 (quoting 8 C.F.R. § 208.18(a)(1)). “[A]n alien seeking relief under
the CAT can establish that the government in question acquiesces to torture by showing
that the government is willfully blind to a group’s activities.” Silva-Rengifo v. Att’y Gen.,
473 F.3d 58, 69 (3d Cir. 2007). A foreign government’s willingness or ability to control a
particular group is therefore relevant, but not conclusive of, governmental acquiescence.
Id. at 65.
All three witnesses at the hearing – Perez, his mother, and his sister – testified that
they did not know who kidnapped or killed Perez’s father or who killed his uncles. Even
though Perez’s mother testified that his father’s abductors left a paper identifying the
FARC, she also testified that she did not know who the FARC was other than suggesting
that they might be guerillas. No evidence, beyond the cryptic note found by the mother,
indicates that the FARC had ever been active in Guatemala. And, although Perez’s father
and uncles were in the Guatemalan military, Perez’s father retired from the military five

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12
years before his kidnapping and fifteen years before his murder. Furthermore, no witness
had any information concerning Perez’s father’s activities in Guatemala during the decade
between his kidnapping and murder.
Similarly, despite Perez’s assertions that the threats his sister received upon return
to Guatemala indicate that, if he returned to Guatemala, his father’s killers would impute
to him a given political opinion, the record is devoid of any indication as to who left the
anonymous notes at her hotel in Guatemala when she returned to identify her father’s
body. Perez urges that the threatening notes received by his sister establish imputed
political opinion. This is speculative at best, as the notes contain no reference whatsoever
to any opinion or motive, but merely warned her to stop investigating her father’s death.
Furthermore, the sister’s testimony established that the authorities in Guatemala
investigated the murder and provided her with police protection, indicating that the
government was concerned with locating the perpetrators and controlling the situation.
The fact that the authorities made efforts to investigate the murder countervails the notion
that the alleged acts of persecution were committed by the Guatemalan government or by
a force that the Guatemalan government was unwilling or unable to control. It also
supports the IJ’s conclusion that Perez could not establish fear of persecution sufficient to
carry his burden on his asylum application.
Given the uncertainty surrounding the identity of who murdered Perez’s father and
uncles and the motive for those murders, we cannot say that the IJ and BIA’s decisions

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13
were erroneous. Simply because Perez’s father was, at one point, a member of the
Guatemalan military does not mandate the conclusion that his killers fifteen years later
acted based on assumptions about his political opinion. Nor do the threatening notes
received by Perez’s sister require the conclusion that some political opinion will be
imputed to Perez or that he will be targeted as a child of a member of the Guatemalan
military, because there is no evidence indicating who wrote the notes or why the author
targeted Perez’s sister. See Singh, 406 F.3d at 196-97 (noting that, in cases concerning
imputed political opinion, “[t]he focus is ... on whether this attribution [of political
opinion to the applicant for asylum] has in fact occurred.” ); see also Sangha v. INS, 103
F.3d 1482, 1489 (9th Cir. 1997) (“To establish an imputed political opinion, the applicant
must show that his persecutors actually imputed a political opinion to him.”).
Perez asserts that he has presented “circumstantial evidence that the Guatemalan
guerillas kidnapped [his] father and murdered [his] father and his uncles due to their
service in the Guatemalan military.” (Petitioner’s Reply Br. at 7.) But the only
circumstantial evidence upon which Perez relies is the note stating “hooray for the
FARC,” allegedly left by the kidnappers, and the fact that his father and uncles served in
the military at some point in the distant past. That evidence is weak at best and, as
discussed above, leaves considerable gaps in Perez’s case. Furthermore, even if the
evidence could arguably support a finding of persecution, it does not compel such a
finding. Since the record supports the conclusion that there is insufficient evidence

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Perez also argues “[t]he persecution of [his] father should be evaluated in light of4
[Perez’s] age at the time [his] father was kidnapped and brutalized and the family home
was burnt down,” (Petitioner’s Reply Br. at 7, relying on Hernandez-Ortiz v. Gonzales,
496 F.3d 1042, 1045 (9th Cir. 2007) (“[A]ge can be a critical factor in the adjudication of
asylum claims and may bear heavily on the question of whether an applicant was
persecuted or whether she holds a well-founded fear of future persecution.” (quoting Liu
v. Ashcroft, 380 F.3d 307, 314 (7th Cir. 2004) (alteration in original))).) However, taking
Perez’s age into consideration does not cure his inability to establish the motive of those
responsible for the murders of his father and uncles.
Since Perez cannot meet his burden on his application for asylum, his claim for5
withholding of removal likewise fails. Furthermore, since there is no evidence suggesting
that Perez would suffer torture as a result of the consent or acquiescence of the
Guatemalan government, the IJ and BIA appropriately rejected his CAT claim.
14
establishing that Perez would be persecuted based on membership in a social group or an
imputed political opinion upon return to Guatemala, there is no basis for vacating the
BIA’s decision. See Am. Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S. 490, 523 (1981)4
(“[T]he possibility of drawing two inconsistent conclusions from the evidence does not
prevent an administrative agency’s finding from being supported by substantial evidence
... .” (internal quotations omitted)). In sum, although Perez presents sympathetic
circumstances, the absence of evidence as to who murdered his family members and the
motive for committing those murders supports the IJ and the BIA’s denial of Perez’s
application for asylum, withholding of removal, and protection under CAT.5
B. Perez’s Due Process Rights Were Not Violated
Perez also argues that the IJ violated his procedural due process rights “by
expediting [his] hearing in order to complete [his] case by the end of June, 2006 so as to
comply with the case completion goals established by the United States Department of

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15
Justice.” (Petitioner’s Op. Br. at 18.) Specifically, Perez takes issue with the IJ’s
decision at the May 9, 2006 hearing – at which counsel for Perez informed the IJ that
Perez was ineligible for NACARA and that Perez sought to reinstate his initial asylum
application – to schedule the hearing on the reinstated application for May 23, 2006.
According to Perez, the IJ’s expedited scheduling deprived him of additional time to
investigate the identities and motives of the individuals who murdered his father and
threatened his sister.
“Aliens facing removal are entitled to due process.” Kamara v. Att’y Gen., 420
F.3d 202, 211 (3d Cir. 2005). In the context of removal hearings, an alien is entitled to a
full and fair hearing and a reasonable opportunity to present evidence. Singh v. Gonzales,
432 F.3d 533, 541 (3d Cir. 2006). To prevail on a due process claim, an alien “must
show that he was prevented from reasonably presenting his case.” Khan v. Att’y Gen.,
448 F.3d 226, 236 (3d Cir. 2006) (internal quotations omitted). Additionally, the alien
must establish substantial prejudice as a result of the alleged procedural error. Singh,
432 F.3d at 541. Our review of Perez’s due process claim is plenary. See id.
Perez has not established that the scheduling of his hearing deprived him of due
process. Although the hearing was scheduled two weeks after Perez reinstated his
application for asylum, Perez ignores the fact that he had the opportunity to investigate
the identity and motive of his father’s killers long before that. Indeed, a hearing on
Perez’s initial asylum application was scheduled for April 19, 2002. The matter was

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Perez’s reliance on Hashmi v. Attorney General of the United States, 531 F.3d 256 (3d6
Cir. 2008) is misplaced. In that case, Hashmi was subject to removal proceedings, but his
wife, a United States citizen, had petitioned for residency based on their marriage. Id. at
257-58. The removal proceedings and the petition for residency proceeded on separate
tracks within the Department of Homeland Security, but the government employees
responsible for handling the respective matters failed to share information necessary for
resolving both claims, delaying both proceedings. Id. at 258-59. The IJ granted three
continuances of the removal proceedings because of the pending residency petition. Id. at
258. In light of the continued delay on the residency petition through no fault of his own,
Hashmi requested an additional six-month continuance, which the government did not
oppose. Id. at 259. The IJ denied the request, noting his obligation to resolve the case
16
repeatedly continued, and there is no apparent reason why he could not have investigated
his claims during that time. In fact, Perez testified that he never made any such effort to
identify his father’s killer.
Moreover, the IJ specifically asked counsel for Perez whether she had any
objection to the scheduling of the hearing on May 23, 2006 and counsel replied that she
did not. Although the IJ indicated that she sought to abide by case completion guidelines,
she also made clear that the requirement that Perez receive a fair hearing was of greater
importance than the court’s schedule. Additionally, the IJ stated that she would “have an
open mind” if Perez and his counsel established a hardship as a result of the schedule, but
there is no indication that Perez ever sought a continuance based on the concerns he raises
now. (App. at 160.) Accordingly, Perez cannot establish that he was precluded from
presenting his case or that he suffered any prejudice, let alone substantial prejudice, as a
result of the IJ’s holding the hearing when she did. Since Perez received a full and fair
hearing on his application, he cannot establish any due process violation.6

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within the time frame established by the DOJ’s case-completion goals, and found Hashmi
removable. Id. We held that the IJ’s denial of the unopposed motion for a continuance,
based solely on case completion goals, was an abuse of discretion and explained that
case-completion goals “should not be read as an end in themselves but as a means to
prompt and fair dispositions, giving due regard to the unique facts and circumstances of
the case.” Id. at 258, 261.
Unlike Hashmi, the matter before us concerns the scheduling of a hearing on a date
that was specifically agreed to by counsel for Perez. There is no reason an IJ cannot
schedule a hearing on a date that conforms to the DOJ’s case completion guidelines so
long as the alien is not unduly prejudiced by the timeframe. Importantly, counsel for
Perez never requested a continuance and never indicated to the IJ that the scheduling
posed a hardship for her client, despite the IJ’s clear willingness to reschedule if
necessary. Accordingly, there is nothing about the circumstances of Perez’s case that
raises concerns akin to those in Hashmi.
17
III. Conclusion
For the foregoing reasons, we will deny Perez’s petition for review.

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