Third Circuit disposition — 084224np-pdf

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-4224
___________
JORGE ABRAHAM RODRIGUEZ-LOPEZ,
Petitioner
vs.
ATTORNEY GENERAL OF THE UNITED STATES
___________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A070-585-273)
Immigration Judge: Honorable Frederic G. Leeds
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
February 4, 2010
Before: SCIRICA, Chief Judge, SMITH and WEIS, Circuit Judges
___________
OPINION
___________
PER CURIAM.
Petitioner, Jorge Abraham Rodriguez-Lopez, seeks review of the Board of
Immigration Appeals’ (“BIA”) final order of removal. For the following reasons, we will
deny his petition.

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Rodriguez-Lopez initially moved to reopen the proceedings so that he1
could apply for labor certification and adjustment of status. When the government
opposed the motion on the ground that it was untimely, however, Rodriguez-Lopez stated
2
I.
Rodriguez-Lopez , a native and citizen of Guatemala, entered the United
States without inspection or parole in November 1990. In January 1993, he filed an
application for asylum and related relief in which he claimed that his life would be in
danger if forced to return to Guatemala. In an affidavit submitted in support of his
application, Rodriguez-Lopez explained that, before he left the country, he had been a
student in Quetzaltenango, where he had associated with an anti-government student
organization. According to his affidavit, several members of the organization were either
assassinated or forced to join the guerrilla army. Fearing for his own life, Rodriguez-
Lopez fled to the United States.
In September 1998, Rodriguez-Lopez appeared for a hearing before
Immigration Judge (“IJ”) Frederic Leeds. After conceding that he was removable as
charged, Rodriguez-Lopez voluntarily withdrew his application, apparently because he
believed that the political climate in Guatemala had improved. As a result, he was given
permission to depart voluntarily before January 23, 1999.
Rodriguez-Lopez did not depart within that period. Rather, approximately
six years later, he filed a motion to reopen his removal proceedings in order to file a new
application for asylum. The IJ granted Rodriguez-Lopez’s request and reopened the1

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that he also intended to seek asylum based on changed conditions in Guatemala. See 8
C.F.R. § 1003.2(c)(2), (3)(ii).
On cross-examination, Rodriguez-Lopez clarified that he was not an2
official member of the organization because he was not enrolled at the university in which
it was based. (AR 000173–178.)
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proceedings.
In Rodriguez-Lopez’s second application for asylum, withholding of
removal, and relief under the Convention Against Torture (the “CAT”), he again stated
that he had participated in a political student group in Quetzaltenango, but this time added
that, as a result of his participation, his family members had been threatened, he had been
attacked and stabbed with a knife, and a close friend of his in the group had been
assassinated. (AR 000503.) According to Rodriguez-Lopez, “some armed group or
groups” were still searching for him because of his association with that friend. (AR
000503.)
The parties appeared for a hearing on Rodriguez-Lopez’s second
application on December 27, 2006. On direct examination, Rodriguez-Lopez’s attorney
first asked him about the student group he had joined in Quetzaltenango. He stated that2
the organization performed protests and visited businesses to collect donations for their
cause. If a business refused to contribute, Rodriguez-Lopez and other members of the
organization would deface the business’s property. According to Rodriguez-Lopez,
several members of the organization disappeared and were later found dead.

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In an affidavit in support of his second application, Rodriguez-Lopez3
claimed that his “personal troubles began” after he had been seen posting signs on a wall
during a “strike.” (AR 000509.)
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Next, Rodriguez-Lopez told the court that, sometime in 1988, his brother
began to receive phone calls warning him that Rodriguez-Lopez was in danger. Then, in
September 1989, three men attacked him and stabbed him in the back, nearly killing him.
Rodriguez-Lopez stated that his brother continued to receive threatening phone calls for
several years after the attack even though he had left the country.
On cross-examination, the government inquired into several inconsistencies
in the record. First, the government asked Rodriguez-Lopez why neither one of his
applications mentioned that he had collected money for the student organization or that he
had defaced property when people refused to contribute. The government also asked him3
why his second application failed to note that his assault was triggered by these activities.
In response, Rodriguez-Lopez explained that “the lawyer never asked [him] about it, the
questions that were asked was whether or not [he] had problems in [his] country because
of political reasons.” (AR 000183.)
Next, the government asked Rodriguez-Lopez why neither one of his
applications mentioned that his brother had received threatening phone calls during the
time that he was still in Guatemala. Rodriguez-Lopez responded that, “at the moment
that [he] was filling out the statement, the declaration, not everything came up in [his]
mind.” (AR 000185.) The government also asked him why he testified on direct

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examination that his wife and children had never been threatened, while in his second
application, he had stated that his “relatives in Guatemala are still receiving threats to kill
[him] and [his] children and [his] wife.” (AR 000186.) Rodriguez-Lopez explained that
the lawyer who assisted him with his second application must have misunderstood him.
After Rodriguez-Lopez testified, he presented Professor Frank Lewis
Rusciano as an expert on his behalf. Professor Rusciano first told the court about his
meeting with Rodriguez-Lopez. According to the professor, Rodriguez-Lopez had
conveyed to him that he had been involved in union strikes supported by students at the
University of San Carlos; that he had placed posters on businesses that did not support the
union; and that he was eventually attacked as a result of these activities. Professor
Rusciano also testified about current conditions in Guatemala, opining that the political
climate had not improved significantly since Rodriguez-Lopez’s departure.
After the hearing, the IJ found that Rodriguez-Lopez was not credible
because he had provided conflicting statements and material omissions regarding his
political activity in Guatemala. Therefore, the IJ found that Rodriguez-Lopez had failed
to demonstrate eligibility for asylum on the basis of past persecution under INA §
101(a)(42)(A). See 8 U.S.C. § 1101(a)(42). The IJ further found that he had not
established a well-founded fear of future persecution. See id. In addition, the IJ held
that, because Rodriguez-Lopez had failed to satisfy the asylum standard, he could not
satisfy the more difficult standard for withholding of removal. See Zubeda v. Ashcroft,

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At the hearing on the application for cancellation of removal, the IJ also4
permitted counsel for Rodriguez-Lopez to make a closing argument, and submit an
additional declaration, in support of his asylum case.
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333 F.3d 463, 469–70 (3d Cir. 2003). Finally, the IJ concluded that Rodriguez-Lopez had
failed to present any evidence demonstrating that it was more likely than not that he
would be tortured if forced to return to Guatemala. See 8 C.F.R. § 1208.16(c)(2).
Therefore, the IJ denied his application for relief under the CAT as well.
Meanwhile, Rodriguez-Lopez had filed an application for cancellation of
removal. Because it had not been properly submitted to the court, the IJ scheduled a
separate hearing on the application. The IJ ultimately determined, however, that
Rodriguez-Lopez was ineligible for this type of relief because he had not been present in
the United States for the requisite ten years before he was served with a notice to appear.4
See 8 U.S.C. § 1229b(b)(1), (d)(1). Accordingly, the IJ entered a final order of removal.
Upon review, the BIA adopted and affirmed the IJ’s decision and dismissed
the appeal. Rodriguez-Lopez now petitions for review of the BIA’s order.
II.
We have jurisdiction to review the BIA’s final order of removal pursuant to
8 U.S.C. § 1252(a)(1). See Abdulai v. Ashcroft, 239 F.3d 542, 548 (3d Cir. 2001).
When, as in this case, the BIA substantially relies on the findings of the IJ, we review the
decisions of both the BIA and the IJ. See Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir.
2004). We review these findings, including any credibility determinations, under a

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substantial evidence standard. See Cao v. Att’y Gen., 407 F.3d 146, 152 (3d Cir. 2005).
An adverse credibility finding must be upheld unless “any reasonable adjudicator would
be compelled to conclude to the contrary.” Berishaj v. Ashcroft, 378 F.3d 314, 322 (3d
Cir. 2004) (quoting 8 U.S.C. § 1252(b)(4)(B)).
On appeal, Rodriguez-Lopez first argues that the IJ who adjudicated his
second asylum application, IJ Frederic Leeds, erred by “totally disregard[ing] the implicit
findings of his predecessor.” (Br. 13.) Although his argument is somewhat difficult to
follow, Rodriguez-Lopez appears to suggest that IJ Leeds, in ruling on the merits of his
asylum application, was bound by IJ Strasser’s earlier determination that Rodriguez-
Lopez had established prima facie eligibility for asylum sufficient to warrant reopening.
According to Rodriguez-Lopez, “Judge Leeds should have approved the application for
asylum in this case if the facts adduced by the petitioner were consistent with those
considered by Judge Strasser when he reopened this matter . . . [because t]he prima facie
case and the willingness to exercise judicial discretion were already established.” (Br.
15.)
Rodriguez-Lopez misunderstands the nature of Judge Strasser’s decision to
reopen his case. Simply stated, the decision to grant a motion to reopen is not a decision
on the asylum application itself; to the contrary, the question presented in a motion to
reopen is simply whether the evidence “reveals a reasonable likelihood that the statutory
requirements for relief have been satisfied.” Sevoian v. Ashcroft, 290 F.3d 166, 173

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(2002) (quoting In re S-V-, Int., Dec. 3430, 2000 WL 562836 (BIA May 9, 2000)
(emphasis added). Indeed, the very purpose of a motion to reopen is to obtain a hearing
on the merits of the application for asylum. In this case, Rodriguez-Lopez succeeded in
establishing prima facie eligibility for asylum, but, after a hearing on his claims, was
found to be not credible, and was denied relief. We see no error in this chain of events,
and reject the notion that IJ Leeds was somehow bound by findings that IJ Strasser made
in connection with the motion to reopen.
Rodriguez-Lopez next argues that the agency’s adverse credibility
determination is not supported by substantial evidence. We disagree, as the record
reveals several inconsistencies in Rodriguez-Lopez’s story that he could not convincingly
explain. Most significantly, although Rodriguez-Lopez testified at the hearing that he
was attacked in Quetzaltenango because of his participation in the anti-government
student organization, he did not mention this incident at all in his first application for
asylum. Given that, as the IJ noted, this attack “really became the heart of” his newly
formulated asylum claim, we cannot disagree with the IJ that this inconsistency greatly
undermined Rodriguez-Lopez’s credibility. See 8 U.S.C. § 1252(b)(4)(B). Therefore, we
will defer to the agency’s findings. See Butt v. Gonzales, 429 F.3d 430, 434 (3d Cir.
2005).
Rodriguez-Lopez also alleges that the IJ committed several procedural
errors during the December 27, 2006 hearing. First, he claims that Judge Strasser’s ruling

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on the motion to reopen is not part of the record. Contrary to his contention, however,
that the administrative record includes the motion to reopen (AR 000521), the
government’s opposition thereto (AR 000820), Rodriguez- Lopez’s response (AR
000764), and IJ Strasser’s order granting the motion (AR 000701). In any event, given
that, as discussed above, IJ Leeds was not bound by IJ Strasser’s interpretation of the
evidence presented in the motion to reopen, we fail to see how Rodriguez-Lopez could
have been prejudiced by IJ Leeds’s alleged failure to review the reopening record.
Rodriguez-Lopez’s next argument appears to be that IJ Leeds improperly
conducted the hearing under the “novel constitutional principle” that the government has
a right to due process. (Br. 23) This argument is based on the fact that “on at least two
occasions Judge Leeds stated that the government had a right to due process!” (Br. 23)
(citing AR 000126, 000176). Our review of the transcript, however, reveals that, in
making the complained-of remarks, IJ Leeds was simply explaining that Rodriguez-
Lopez’s failure to comply with the court’s rules could prejudice the government. (AR
000126, 000176.) Therefore, Rodriguez-Lopez was in no way prejudiced by these
remarks, and his suggestion that IJ Leeds attributed rights to the government that it did
not have is specious.
Rodriguez-Lopez also challenges the IJ’s decision to forego closing
arguments at the end of the December 27, 2006 hearing. Here too, however, we fail to
see how Rodriguez-Lopez could have been prejudiced by this decision. As his attorney

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conceded at the time, he had presented all of the evidence he wanted, had asked all of the
questions he wanted, and had been able to present his expert witness. (AR 000262–63.)
In any event, the IJ ultimately allowed counsel to make a summation in support of his
applications, albeit at the second hearing. (AR 00076.) Therefore, this argument likewise
fails.
Finally, Rodriguez-Lopez challenges the BIA’s order insofar as it affirms
the IJ’s decision denying his application for cancellation of removal. Upon review, we
agree with the BIA and IJ that Rodriguez-Lopez was not eligible for cancellation of
removal because he had not been continuously present in the country for the requisite ten
years. See 8 U.S.C. § 1229b(b)(1)(A). As the IJ explained, under the “stop-time”
provision, 8 U.S.C. § 1229b(d)(1)(A), Rodriguez-Lopez’s period of continuous physical
presence ended in 1997, when he was served with a notice to appear. (AR 000865.)
Although he argues on appeal, as he did before the IJ, that he never conceded service of
the notice to appear, we have held that a strong presumption of effective service of a
notice of hearing arises when, as in this case, the notice is sent by certified mail. Santana
Gonzales v. Att’y Gen., 506 F.3d 274, 278 (2007). Because Rodriguez-Lopez failed to
present evidence of non-delivery sufficient to overcome that presumption, we see no error
in the agency’s determination that he did not meet the continuous presence requirement in

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Rodriguez-Lopez also argues that “the weight of authority supports5
granting asylum in this case,” and cites to a number of cases in which Guatemalan
citizens have been granted asylum. (Br. 26.) Suffice it to say that, unlike Rodriguez-
Lopez, none of these petitioners were found to be not credible.
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8 U.S.C. § 1229b(b)(1)(A).5
We have considered Rodriguez-Lopez’s remaining arguments and conclude
that they are without merit. Therefore, we will deny the petition for review.

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