ALD-018 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 18-2277
___________
WILMER NOEL MATAMOROS RIVERA,
AKA Noe Garcia Mora, AKA Wilmer N. Rivera,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A205-017-099)
Immigration Judge: Annie S. Garcy
____________________________________
Submitted on the Government’s Motion for Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
October 25, 2018
Before: MCKEE, SHWARTZ and BIBAS, Circuit Judges
(Opinion filed: November 6, 2018)
_________
OPINION*
_________
PER CURIAM
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Wilmer Noel Matamoros Rivera petitions for review of a decision by the Board of
Immigration Appeals (BIA) dismissing his appeal. The Government has moved for
summary action, arguing that no substantial question is presented on appeal. We will
grant the Government’s motion and summarily deny the petition for review.
Matamoros Rivera, a citizen of Honduras, entered the United States without
inspection. In April 2012, the Government charged Matamoros Rivera with removability
for being present in this country without being admitted or paroled. See Immigration and
Nationality Act (INA) § 212(a)(6)(A)(i) [8 U.S.C. § 1182(a)(6)(A)(i)]. Matamoros
Rivera appeared with counsel before an Immigration Judge (IJ) in August 2012,
conceded removability, and indicated that he would apply for withholding of removal and
protection under the Convention Against Torture (CAT). The next hearing was
postponed three times, until March 2015, at which time Matamoros Rivera submitted his
withholding and CAT protection applications, expressing a fear that gang members in his
home country would harm him because he refused to pay a “war tax.” The IJ scheduled
the next hearing for May 25, 2017.
On that date, Matamoros Rivera appeared before the IJ and testified in support of
his applications. The IJ also denied Matamoros Rivera’s requests for relief, concluding
that he was not credible and that, alternatively, he did not qualify for withholding of
removal or protection under the CAT. Matamoros Rivera appealed. The Board of
Immigration Appeals assumed that Matamoros Rivera testified credibly, but agreed with
the IJ that he failed to demonstrate that the gang targeted him on account of a protected
2
ground and failed to establish that he was more likely than not to be tortured by or with
the acquiescence of a public official in Honduras.1 Accordingly, the Board dismissed the
appeal. This timely petition for review followed.
We generally have jurisdiction to review a final order of removal under INA
§ 242(a)(1) [8 U.S.C. § 1252(a)(1)]. We review the agency’s legal conclusions under a
de novo standard, but must uphold the agency’s factual findings “unless any reasonable
adjudicator would be compelled to conclude to the contrary.” INA § 242(b)(4)(B) [8
U.S.C. § 1252(b)(4)(B)]; see also Mendoza-Ordonez v. Att’y Gen., 869 F.3d 164, 169
(3d Cir. 2017).
Matamoros Rivera’s counseled brief does not directly challenge the Board’s
conclusion that he failed to establish eligibility for withholding of removal and protection
under the CAT. Instead, Matamoros Rivera asserts that Board failed to consider relevant
evidence, and that his appeal should have been considered by a three-member panel of
the Board. The Government has filed a motion for summary affirmance, which we
construe as a motion to summarily deny the petition for review.
1
The Board also concluded that there was good cause for the IJ’s denial of Matamoros
Rivera’s request for continuance. Matamoros Rivera had sought a continuance so that he
could submit documents that were being mailed to him from Honduras. The IJ held,
however, that Matamoros Rivera had been advised to submit evidence 60 days prior to
the hearing, that the “new” evidence—which included death records of family and friends
who allegedly were murdered years ago—could have been submitted earlier, and that, in
any event, the documents were not relevant to his case. Matamoros does not
meaningfully challenge the denial of his request for a continuance. See Bradley v. Att’y
Gen., 603 F.3d 235, 243 n.8 (3d Cir. 2010) (holding that argument not raised in opening
brief is waived).
3
Matamoros Rivera claimed that the BIA “totally overlooked” the 2013 State
Department Human Rights Report on Honduras. This allegation is simply incorrect. In
addressing his CAT claim, the Board stated that “although the Department of State’s
Honduras 2013 Human Rights Report indicates that there is troubling misconduct by
government officials, there was no evidence that individuals like [Matamoros Rivera]
who are subjected to extortion are more likely than not to be tortured by or with the
acquiescence of a public official in Honduras.” Matamoros Rivera also faults the Board
for failing to consider the 2017 Overseas Security Advisory Council Crime and Safety
Report for Honduras, which he cited in his brief on appeal to the BIA. But the BIA is not
required to “expressly parse or refute on the record each individual argument or piece of
evidence offered by the petitioner.” Zheng v. Att’y Gen., 549 F.3d 260, 268 (3d Cir.
2008) (citation omitted). Moreover, the portion of that report cited in Matamoros
Rivera’s brief does not support his claim for CAT relief. The cited portion of the report
stated, in relevant part, that “criminals operate with a high degree of impunity” because
the Honduran government “lacks resources to investigate and prosecute cases.” But a
lack of resources to stop the threat of torture does not constitute sufficient state action for
purpose of CAT relief. See Pierre v. Att’y Gen., 528 F.3d 180, 189 (3d Cir. 2008) (“The
lack of medical care and likely pain that Pierre will experience is an unfortunate but
unintended consequence of the poor conditions in the Haitian prisons, which exist
4
because of Haiti's extreme poverty. We find that this unintended consequence is not the
type of proscribed purpose contemplated by the CAT.”).
Finally, Matamoros Rivera asserts that, because the IJ made clearly erroneous
findings of fact, the BIA erred in not referring the case to a three-member panel.2
Pursuant to 8 C.F.R. § 1003.1(e), “all cases shall be assigned to a single Board member
for disposition” unless the “case meets the standards for assignment to a three-member
panel under paragraph (e)(6) of this section.” Paragraph (e)(6) provides that a case may
be assigned to a three-member panel if it, inter alia, presents the “need to review a clearly
erroneous factual determination by an immigration judge.” 8 C.F.R. § 1003.1(e)(6)(v).
Notably, however, Matamoros Rivera has not identified any relevant erroneous factual
determinations that were made by the IJ. Although he argued on appeal to the Board that
the IJ’s adverse credibility finding was erroneous, Administrative Record, 44, the Board
assumed that Matamoros Rivera testified credibly. And Matamoros Rivera has not
alleged that there was any error in the factual determinations underlying the IJ’s
alternative conclusion that, even if credible, he is ineligible for withholding of removal
and CAT protection. Therefore, he has failed to demonstrate that his case should have
been reviewed by a three-member panel of the BIA.
2
He also devotes a substantial portion of his brief to arguing that we have jurisdiction
over this claim. Pet’r’s Br., 21-29. Our jurisdiction over this claim is not in dispute,
however. See Purveegiin v. Gonzales, 448 F.3d 684, 688-92 (3d Cir. 2006) (holding that
jurisdiction existed over claim that Board was required to refer petitioner’s case for three-
member review);
5
For the above reasons, and because no substantial question is presented in this
case, we grant the Government’s motion for summary action and will deny the petition
for review. See 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P. 10.6.
6