446 F. App'x 166
11th Cir.2011Background
- Cortez, Venezuelan citizen, entered the U.S. in 2001 as a nonimmigrant and overstayed;
- DHS served a Notice to Appear in 2008 charging removability under INA § 237(a)(1)(B);
- In 2010 Cortez applied for asylum, withholding of removal, and CAT based on political opinions;
- He alleged threats to family members (grandfather and mother) and an uncle’s murder connected to Venezuelan politics;
- During the hearing, Cortez attempted to testify about his mother’s experiences but the IJ sustained the government’s objection;
- The IJ and BIA denied relief, including asylum as untimely; the BIA affirmed and Cortez petitions for review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of asylum filing | Cortez asserts timely filing under INA § 208(a)(2)(B). | BIA/agency lacked jurisdiction to review timeliness and upheld untimely filing. | Petition dismissed for lack of jurisdiction over timeliness. |
| Due process and exclusion of mother's testimony | Excluding testimony about mother's experiences was prejudicial and relevant. | Testimony was speculative and not probative to Cortez's own persecution. | Assiduous assumption that due process argument was not dispositive; evidence exclusion did not alter outcome. |
| Past persecution and well-founded fear for political opinion | Family persecution and threats establish Cortez's own past persecution or imputed opinion. | No direct involvement by Cortez; speculative chain to him; insufficient nexus. | Substantial evidence supports denial of asylum/relief. |
Key Cases Cited
- Sanchez-Jimenez v. U.S. Att’y Gen., 492 F.3d 1223 (11th Cir. 2007) (lacks jurisdiction to review timeliness determinations under INA § 208(a)(3))
- Chacon-Botero v. U.S. Att’y Gen., 427 F.3d 954 (11th Cir. 2005) (REAL ID Act did not undermine lack of appellate review for timeliness)
- Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247 (11th Cir. 2006) (jurisdictional exhaustion requirement for review)
- Resendiz-Alcaraz v. U.S. Att’y Gen., 383 F.3d 1262 (11th Cir. 2004) (due process requires notice and opportunity to be heard)
- Adefemi v. Ashcroft, 386 F.3d 1022 (11th Cir. 2004) (substantial evidence standard and deference to agency findings)
- Ibrahim v. INS, 821 F.2d 1547 (11th Cir. 1987) (admissibility of hearsay evidence if probative and not unfair)
- Tashnizi v. INS, 585 F.2d 781 (5th Cir. 1978) (uncontradicted hearsay admissible if probative and not unfair)
- Galvez-Escobar v. U.S. Att’y Gen., 135 F. App’x 287 (11th Cir. 2005) (application of evidence standard in asylum proceedings)