Carlos ORTIZ, Appellant, v. Ronnie HOLT, Warden, USP Canaan; S.I.S Investigation Unit, USP Canaan.
No. 10-1065.
United States Court of Appeals, Third Circuit.
Submitted Pursuant to Third Circuit LAR 34.1(a) July 22, 2010. Opinion filed: Aug. 16, 2010.
Both Lin-Zheng and Matter of J-S- foreclose eligibility for asylum in Ye‘s case solely on the basis of his wife‘s forced abortion. Thus, he can only establish a basis for asylum if he shows that he suffered past persecution or has a well-founded fear of persecution in China on account of his “other resistance” to the Chinese government‘s population control policies. Lin-Zheng, 557 F.3d at 157; Matter of J-S-, 24 I. & N. Dec. at 538. The phrase other resistance “covers a wide range of circumstances, including expressions of general opposition, attempts to interfere with enforcement of government policy in particular cases, and other overt forms of resistance to the requirements of the family planning law,” see Matter of S-L-L-, 24 I. & N. Dec. 1, 10 (BIA 2006). Ye‘s evidence does not compel the conclusion that he exercised “other resistance” to China‘s population control policies.
In addition, substantial evidence supports the Board‘s determination that Ye failed to demonstrate a well-founded fear of future persecution. Ye has only one child and is not currently in violation of China‘s one-child policy. His wish to have a second child does not, by itself, constitute objective evidence of a well-founded fear of persecution. Without evidence of his locale‘s family planning enforcement initiatives, and Ye offered no such evidence, the record does not support a finding, let alone compel the conclusion, that Ye himself would be, for example, subjected to a severe economic sanction or involuntarily sterilized. His wife‘s abortion alone does not establish that he would be persecuted if he attempted to have additional children, or that he would offer “other resistance” to China‘s policies upon his return to China. Ye‘s contention that his wife‘s abortion makes him eligible for asylum based on “traditional principles of asylum law” is contradicted by our holding in Lin-Zheng, 557 F.3d at 155-56.
For the foregoing reasons, we will deny the petition for review.
Michael J. Butler, Esq., Mark E. Morrison, Esq., Office of United States Attorney, Harrisburg, PA, for Appellee.
Before: RENDELL, HARDIMAN and ALDISERT, Circuit Judges.
OPINION
PER CURIAM.
Carlos Ortiz filed a petition pursuant to
We have jurisdiction pursuant to
Due process protections attach in prison disciplinary proceedings in which the loss of good-time credits is at stake. See Wolff v. McDonnell, 418 U.S. 539, 564-65 (1974). In Wolff, the Supreme Court held that an inmate must receive “(1) advance written notice of the disciplinary charges; (2) an opportunity, when consistent with institutional safety and correctional goals, to call witnesses and present documentary evidence in his defense; and (3) a written statement by the factfinder of the evidence relied on and the reasons for the disciplinary action.” Superintendent v. Hill, 472 U.S. 445, 454 (1985).
Ortiz received the procedural protections set forth in Wolff. He received notice of the charges; an opportunity to present evidence and call witnesses; and he received the written statement that is in the record and describes the evidence on which the factfinder relied, as well as the reasons for the disciplinary action.
Ortiz also claimed that a federal regulation and his right to due process were violated because his hearing was not held within three days from the time prison personnel become aware of an incident warranting a hearing. Federal regulations provide that an initial hearing before a Unit Disciplinary Committee is ordinarily held within “three work days from the time staff became aware of the inmate‘s involvement in the incident.”
The last issue is whether some evidence supported the imposition of sanctions. Upon reviewing the record, we conclude that the “some evidence” standard is met.1 In the record is the hearing officer‘s report, which quotes the relevant incident report. Although Ortiz maintains that the evidence against him was “non-existent and made up,” Appellant‘s Brief 1, he did not dispute the existence of the incident report, see e.g., Petition 4. His objection that the report was based on hearsay does not change its validity as evidence against him. See Griffin v. Spratt, 969 F.2d 16, 22 (3d Cir. 1992) (noting that a decisionmaker may rely on hearsay in a prison disciplinary proceeding).
In the incident report, an investigating officer relied on the statements of other inmates and transactions in Ortiz‘s commissary account to determine that Ortiz possessed and sold full and partial grams of heroin in prison. The incident report also cited an investigation following the arrest of a prison visitor found to be carrying heroin; the investigation, based on interviews, inmate statements, and telephone recordings, revealed that the visitor was meeting with a person that Ortiz was using as a drug “mule” or “carrier.” In addition, at his hearing Ortiz conceded that he had addressed an envelope that was found among the release paperwork of another inmate. The envelope contained a typed letter (of which Ortiz disavowed ownership) that requested 30 grams of heroin and was addressed to someone Ortiz described as a friend. The person carrying the letter when it was found stated that he had agreed to smuggle out the letter for another inmate. Furthermore, Ortiz did not deny that he received funds from other inmates (although he stated that he received money because he ran a store of sorts, not because he sold drugs). In short, despite Ortiz‘s claim to the contrary, “some evidence” supports the prison disciplinary committee‘s finding.
For these reasons, we conclude that the District Court properly ruled that Ortiz did not show that his right to due process of law or his rights under the relevant regulation were violated. We will affirm the District Court‘s judgment.