Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
6-20-2005
Rosal-Olavarrieta v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-2408
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-2408
RANDOLPH ROSAL-OLAVARRIETA,
Petitioner
v.
*ALBERTO R. GONZALES,
Attorney General of the United States,
Respondent
(*Substituted pursuant to Rule 43(c), Fed. R. App. P.)
On Petition for Review of a Decision and Order of the
Board of Immigration Appeals
(BIA No. A79-086-717)
Submitted Pursuant to Third Circuit LAR 34.1(a)
May 24, 2005
Before: SCIRICA, Chief Judge, ALITO and RENDELL, Circuit Judges
(Filed June 20, 2005)
OPINION OF THE COURT
SCIRICA, Chief Judge.
Petitioner Randolph Rosal-Olavarrieta alleges ineffective assistance of counsel
during immigration removal proceedings in violation of due process. The BIA concluded
Petitioner received a full and fair opportunity to develop his claims for asylum,
withholding of removal and deferral of removal. Accordingly, the Board denied relief on
the merits. We have jurisdiction under 8 U.S.C. § 1252 and will affirm.
I.
Because we write for the parties, an abbreviated recitation of the facts will suffice.
Petitioner, a citizen of Venezuela, entered the United States in 1999 by way of a six-
month tourist visa. He overstayed the visa, and was detained by the INS.1 In removal
proceedings before an Immigration Judge, Petitioner conceded removability but requested
asylum and withholding of removal under the Immigration and Nationality Act, and
deferral of removal under the Convention Against Torture. See Wang v. Gonzales, 405
F.3d 134 (3d Cir. 2005) (discussing asylum, withholding of removal, and the Convention
Against Torture). An HIV-positive homosexual man, Petitioner claimed a well-founded
fear of sexual-orientation persecution and/or torture upon his return to Venezuela.
With the assistance of counsel, Petitioner submitted an asylum application prior to
his removal hearing. It included an eleven-page (single-spaced) declaration outlining
1
Beginning on March 1, 2003, INS became a part of the Department of Homeland
Security pursuant to the Homeland Security Act of 2002, Pub. L. No. 107-296, 110 Stat.
2135 (Nov. 25, 2002).
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Petitioner’s asserted grounds for relief. At the subsequent merits hearing, Petitioner
testified as to incidents of past sexual-orientation harassment and discrimination in
Venezuela and incidents of alleged extortion by the Venezuelan police. Petitioner also
emphasized the inadequacy of HIV/AIDS medical treatment in his home country.
Apparently dissatisfied with the information elicited during counsel’s direct examination,
the Immigration Judge proceeded to question Petitioner directly, asking, among other
things, “What do you think will happen to you if you return to Venezuela?” As recounted
in the BIA opinion, Petitioner answered that he would receive inadequate medical
treatment, but did not mention a fear of persecution or torture by the Venezuelan police.
The Immigration Judge denied relief. Although the IJ credited much of
Petitioner’s testimony, he found that Petitioner “exaggerated” the incidents of past
persecution by the Venezuelan police. The IJ refused to credit this testimony and
accordingly denied asylum and withholding of removal. See Gao v. Ashcroft, 299 F.3d
266, 272 (3d Cir. 2002) (explaining that past persecution is cognizable only when
attributable to either the government or parties the government is unable or unwilling to
control). Furthermore, in light of Petitioner’s failure to describe past incidents of torture,
the IJ denied relief under the Convention Against Torture.
Petitioner appealed to the BIA. Represented by new counsel, Petitioner sought to
introduce supplemental evidence before the Board and requested a remand to the IJ based
on the purported ineffective assistance of trial counsel. The Board refused to consider the
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supplemental evidence or to remand the case, concluding Petitioner had received ample
opportunity to develop his claims at trial, notwithstanding counsel’s “obvious difficulties”
in communicating with her client and counsel’s “personal problems that may have
affected her presentation of the respondent’s case.” The Board acknowledged that
counsel’s representation was less than optimal, but emphasized Petitioner’s opportunity to
proffer direct testimony of past persecution in both his written asylum application and in
response to direct examination by the Immigration Judge. In light of the IJ’s adverse
credibility finding, and the vague nature of Petitioner’s claims of past police persecution,
the Board dismissed the appeal on the merits.
II.
This petition for review does not challenge the Board’s merits determination, but
rather seeks a remand on the basis of ineffective assistance of counsel. Ineffective
assistance can be established in immigration matters where counsel’s representation (or
lack thereof) results in a fundamentally unfair proceeding. Borges v. Gonzales, 402 F.3d
398, 408 (3d Cir. 2005). To establish fundamental unfairness, the alien must demonstrate
prejudice—i.e., a reasonable probability of a different outcome had counsel performed
effectively. Saakian v. INS, 252 F.3d 21, 25 (1st Cir. 2001); Fischetti v. Johnson, 384
F.3d 140, 155 (3d Cir. 2004) (explaining prejudice analysis in habeas context). Petitioner
has not satisfied this burden.
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Petitioner’s ineffective assistance claim is two-pronged. First, Petitioner contends
his written asylum application should have included additional information relevant to his
claims of persecution by the Venezuelan police. Petitioner blames trial counsel for not
properly explaining the legal requirements for asylum/withholding of removal, and for not
tailoring the application accordingly. Second, Petitioner contends counsel failed to
adequately prepare him for the merits hearing before the IJ and failed to provide
competent direct examination.
But the BIA found that Petitioner did, in fact, allege persecution by the
Venezuelan police in his written application and did, in fact, testify as to these incidents
at the hearing. Trial counsel’s representation, whatever its defects, did not bar Petitioner
from airing his claims of past police persecution before the IJ. As emphasized by the
BIA, Petitioner testified that he had been “stopped by the police many times and forced to
pay a bribe or the police would put him in detention with other prisoners.” The IJ,
however, found these claims to be “exaggerated” and refused to credit them.
Furthermore, when the IJ queried Petitioner regarding his return to Venezuela, Petitioner
expressed anxiety over whether he would receive adequate medical care, but not fear of
persecution at the hands of the police. Based on Petitioner’s testimony, and the adverse
credibility finding of the IJ, the BIA concluded Petitioner had an adequate opportunity to
develop his allegations of persecution but had failed to do so. Accordingly, the Board
refused to consider Petitioner’s supplemental evidence and refused to remand to the IJ for
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another hearing. We see neither legal error nor prejudice in this determination, and
therefore no due process violation.
The BIA expressly recognized that trial counsel’s performance was less than
optimal. But the Immigration Judge picked up where counsel faltered, and accorded
Petitioner ample opportunity to demonstrate his eligibility for relief. Petitioner
nevertheless failed to provide credible testimony of past persecution. Because there is no
showing of fundamental unfairness in the proceeding, we will deny the petition for
review.
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