IMG-109 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 12-1859
___________
MARCELO F. CARBONE BALL,
Petitioner
v.
ATTORNEY GENERAL OF THE
UNITED STATES OF AMERICA,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A099-384-266)
Immigration Judge: Honorable Mirlande Tadal
____________________________________
Submitted Under to Third Circuit LAR 34.1(a)
On September 5, 2012
Before: SMITH, HARDIMAN AND ROTH, Circuit Judges
(Opinion filed: September 12, 2012)
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OPINION
_________
PER CURIAM
The petitioner, a native and citizen of Uruguay, seeks review of a Board of
Immigration Appeals (BIA) decision denying his application for withholding of removal.
We have jurisdiction under 8 U.S.C. § 1252(a),1 reviewing the agency’s factual
determinations using an “extraordinarily deferential standard,” under which they will be
upheld “unless any reasonable adjudicator would be compelled to conclude to the
contrary.” Garcia v. Att’y Gen., 665 F.3d 496, 502 (3d Cir. 2011) (citations omitted).
Having carefully examined the record, we conclude that substantial record evidence
supports the BIA’s determination that the domestic violence endured, witnessed, and
feared by the petitioner (and his family) was not “persecution” because it was committed
neither by the Uruguayan government nor by forces it was unable or unwilling to control.
Administrative Record (A.R.) 4–5; Lie v. Ashcroft, 396 F.3d 530, 537 (3d Cir. 2005).2
The petitioner testified that the Uruguayan police were responsive to his family’s
complaints against his abusive father, if not to the extent he desired. A.R. 123–25, 135.
The various country reports submitted to the agency, while equivocal, can be plausibly
1
We agree with the Government that we lack jurisdiction to address the petitioner’s
asylum and Convention Against Torture claims, which were alternately unexhausted and
waived. See 8 U.S.C. § 1252(d)(1); Khan v. Att’y Gen., No. 11-1789, 2012 U.S. App.
LEXIS 16946, at *14 n.4 (3d Cir. Aug. 14, 2012); see also 8 U.S.C. § 1158(a)(3)
(limiting judicial review of asylum untimeliness determinations).
2
Fiadjoe v. Att’y Gen., 411 F.3d 135 (3d Cir. 2005), which also dealt with horrific
domestic abuse, is distinguishable from the present situation. There, we observed that the
BIA had “totally ignored the evidence in the record that establishes the deep hold that the
Trokosi religion has upon substantial elements of the Ghanian people,” and pointed out
that it was not “easy to escape from Trokosi slavery.” Id. at 161. Furthermore, the “most
recent State Department Report covering Ghana show[ed] how futile resort to the police
would have been.” Id. Here, not only does the record not compel a conclusion of
hypothetical police noninterference in domestic-violence situations, the police did
actually intervene upon a formal complaint. While a different evidentiary proffer could
2
read to support the BIA’s conclusion that the official Uruguayan response to domestic
violence, while achieving “mixed results,” reflects the country’s “efforts to criminalize
such acts and to protect the victims.” A.R. 6. “Where the record supports plausible but
conflicting inferences in an immigration case, the . . . choice between those inferences is,
a fortiori, supported by substantial evidence.” De Hincapie v. Gonzales, 494 F.3d 213,
219 (1st Cir. 2007). Because the agency’s decision is sustainable on this ground, we need
not reach its alternative holdings and the petitioner’s arguments against them. This
petition for review will be denied.
nudge this case closer to Fiadjoe, on the record before the agency, which must be the
basis of our ruling, see 8 U.S.C. § 1252(b)(4)(A), we cannot say that Fiadjoe controls.
3