Perez v. Atty Gen USA

Filing 3110103467

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NOT PRECEDENTIAL U N IT E D STATES COURT OF APPEALS F O R THE THIRD CIRCUIT _____________ N o . 08-1444 _____________ L U IS EMILIO PEREZ MUNIZ, Petitioner v. A T T O R N E Y GENERAL OF THE UNITED STATES, Respondent ______________ O n Petition for Review of an Order of the U n ite d States Department of Justice B o a rd of Immigration Appeals (B IA 1:A72-381-619) Im m ig ra tio n Judge: Honorable Annie S. Garcy _______________ A rg u e d January 26, 2010 B ef o re : RENDELL and JORDAN, Circuit Judges, and PADOVA,* Senior District Judge. (F ile d : February 8, 2010) _______________ A n a ya n c y R. Houseman F ra n c is X. Geier [ARGUED] 4 5 3 Westminster Avenue E liz a b eth , NJ 07208 C o u n s e l for Petitioner _______________ *Honorable John R. Padova, United States District Court Senior Judge for the Eastern D is tric t of Pennsylvania, sitting by designation.

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G re g o ry G. Katsas R ic h a rd M. Evans S h a ro n Clay [ARGUED] B ro o k e M. Maurer o f f ic e of Immigration Litigation Civil Division U .S . Department of Justice P .O . Box 878, Ben Franklin Station W a sh in g to n , DC 20044 C o u n s e l for Respondent _______________ O P IN I O N OF THE COURT _______________ J O R D A N , Circuit Judge. L u is Emilio Perez Muniz ("Perez") petitions for review of a final order of the B o a rd of Immigration Appeals ("BIA") denying his application for asylum, withholding o f removal, and relief under the United Nations Convention Against Torture ("CAT"). Perez claims that, if he is returned to his native Guatemala, he will face physical violence, in c lu d in g murder, like his father and uncles. Despite our sympathy for the suffering of P e re z 's family, we must deny his petition. I. B a c k gro u n d A. P e re z's Application for Asylum

P e re z , a thirty-one year old, unmarried citizen of Guatemala, entered the United S tate s illegally in 1989 at the age of twelve.1 He first applied for asylum in 1994, and his

Perez's initial removal petition lists him as having entered the United States on or a b o u t September 15, 1991, however, Perez amended his date of last entry as 2

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a p p lic a tio n was referred to an immigration judge on June 11, 2001. Perez was su b se q u e n tly charged with being removable as an illegal alien. He conceded removability b u t sought relief from removal by applying for asylum, withholding of removal, and p ro te c tio n under the CAT. He also sought voluntary departure in the event his application w a s denied. The case was postponed and continued for several years and, on October 11, 2005, w a s reassigned to a new Immigration Judge ("IJ") who scheduled it for an April 4, 2006 h e a rin g . At the hearing, Perez withdrew his application for asylum, and the IJ continued th e case until May 9, 2006 to allow counsel time to determine whether Perez was eligible f o r relief under the Nicaraguan Adjustment and Central American Relief Act (" N A C A R A " ). On May 9, 2006, counsel for Perez informed the IJ that Perez was ineligible for N A C A R A relief and sought to reinstate his initial asylum application. The IJ scheduled a h e a rin g on the merits of Perez's application for May 23, 2006, only two weeks later, out o f concern for the Department of Justice's case completion goals. The IJ asked counsel w h e th e r she objected to the scheduling and counsel replied that she did not. The IJ made c le a r that, although she sought to resolve Perez's case by June in accordance with the case co m p letion goals, "[i]f the case cannot be finished before the end of June then we won't

September 15, 1989 and Perez, his mother, and his sister testified that he entered the c o u n try in 1989. 3

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f in is h it before the end of June because [Perez] need[s] to be afforded with a fair hearing ... ." (App. at 158.) The IJ also told Perez that if he and his counsel were able to c o n v in c e the court that the scheduling is "hurting [Perez's] case," she would "have an o p e n mind about [rescheduling]." (App. at 160.) B. T h e May 23, 2006 Hearing

O n May 23, 2006, the IJ held the hearing on Perez's application for asylum, w ith h o ld in g of removal, relief under CAT, and voluntary departure in the alternative. Perez, his mother, and his sister testified concerning the kidnapping and murder of P e re z 's father and uncles in Guatemala. Perez's mother testified that Perez's father had been in the Guatemalan army d u rin g the Guatemalan civil war, and that he retired in approximately 1983. On S e p te m b e r 15, 1988, he was kidnapped by two men who came to the family home. Two o th e r men took Perez's mother into the home and threatened her and her children should sh e report the kidnapping. The men left a note that read "hooray for the FARC." Perez's m o th e r did not know who the men were and never learned what "FARC" meant, although s h e suspected it referred to guerillas.2

FARC is the acronym for the Fuerzas Armadas Revolucianarias de Colombia, a leftist g u e rilla revolutionary group active throughout much of Colombia. See Gomez-Zuluaga v. A tt'y Gen., 527 F.3d 330, 335 (3d Cir. 2008). At the hearing, the IJ noted that she had o n ly heard of FARC in connection with Colombia and counsel for Perez admitted that she w a s not aware of anything linking FARC's activities to Guatemala, other than possibly d ru g trafficking. The country report on Guatemala in the record does not mention a F A R C presence in Guatemala. 4

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P e re z 's father returned a month later; his right hand had been mutilated, with two o f his fingers cut off. Immediately thereafter, Perez and his sister, mother, and father fled G u a te m a la for Mexico, whereupon their family home in Guatemala was burned down. Perez's mother eventually sent Perez and his sister back to Guatemala to live with their g o d m o ther. Perez's father and mother continued on to the United States, though Perez's f a th e r was deported to Guatemala, while Perez's mother continued on to New Jersey. Perez's mother worked in New Jersey with the hope of bringing her children to the United S ta te s to join her, which she eventually did. Perez's mother spoke with Perez's father only twice before she learned from her d a u g h te r in 1998 that he had been killed in Guatemala. Perez's mother testified that she k n e w nothing about Perez's father's activities between 1988 and 1998. Additionally, P ere z's mother learned that Perez's uncles, who had also served in the military, were k ille d , although she testified that she knew nothing regarding the circumstances of their m u rd e rs . Perez's mother expressed fear that, should her son return to Guatemala, he w o u ld suffer the same fate as his father. Perez's sister also testified concerning the murder of her father. She testified that s h e did not know who committed the murder. She returned to Guatemala in 1998, a p p ro x im a tely six months after her father was murdered, to identify the body and to o b ta in information from the police concerning their investigation into the murder. The p o lic e exhumed the body so that she could identify it. Perez's sister received two

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a n o n ym o u s notes at her hotel, warning her to "be careful what you do" and threatening th a t "if you want to know what happened we will let you know exactly what happened." (App. at 285.) She informed the police of the notes, and, although they provided her with p o lic e protection, they suggested that she leave the country in light of the threats. She has n o t contacted the police to learn the status of the investigation, nor has she received any n o tice that the investigation has been resolved. Like her mother, Perez's sister fears that, if her brother were to return to Guatemala, he would suffer the same fate as their father. Perez also testified at his hearing. Like his mother and sister, Perez testified that h e does not know who killed his father or his uncles and that he has not made any efforts to contact the police, or anyone else in Guatemala, for more information. However, he tes tifie d that he fears returning to Guatemala because he fears that whoever killed his f a th e r and uncles would try to kill him as well. C. T h e IJ and BIA's Decisions

In an oral decision, the IJ denied Perez's application for asylum, withholding of rem o v al and relief under CAT, but granted his petition for voluntary departure. The IJ f o u n d that Perez's mother and sister, and Perez himself, testified credibly as to the k id n a p p in g and murder of Perez's father and uncles. But she noted that "there is a gaping h o le [as to] who it is that the respondent actually fears" which "cannot be filled because n o n e of the family can identify [who is responsible for the murder]." (App. at xviii.) She a d d e d , "[w]ithout knowing who it might have been who committed the murder, ... the

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c o u rt cannot link the murder to the family as a potential social group, much less to the re sp o n d e n ts race, religion, nationality, or even political opinion that might have been a ttrib u te d to him as a result of his family membership ... ." (App. at xix.) Furthermore, th e IJ indicated that the fact that the police were investigating the murder and went so far a s to exhume the father's body so that Perez's sister could identify it suggests that the G u a te m a la n government was not "unable or unwilling to control" whomever murdered P e re z 's father. (App. at xviii.) Ultimately, the IJ concluded that Perez lacked proof as to th e identity and motive of the murderers of his father and uncles, and, thus, could not e s ta b lis h persecution as required to prevail on his application. Perez appealed to the BIA. In a per curiam opinion, the BIA accepted the IJ's f in d in g of facts and "adopt[ed] and affirm[ed] her comprehensive decision," noting the co n side rab le uncertainty as to who murdered Perez's father, why they murdered Perez's f a th e r, and the extent of any connection between the father's kidnapping in 1988 and his m u rd e r ten years later. (App. at iii.) Perez then petitioned our Court for review. II. D is c u s s io n 3 A. T h e IJ's Determination is Supported by Substantial Evidence

T h e IJ expressed sympathy for Perez's situation but concluded that, in the absence o f evidence as to the identity and motives of the murderer of Perez's father, Perez could

We have appellate jurisdiction to review final orders of removal pursuant to 8 U.S.C. § 1252. 7

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n o t establish that he would suffer persecution upon return to Guatemala as a result of ra c e , religion, nationality, membership in a particular social group, or political opinion. Perez argues that the IJ ignored evidence that he "had a well-founded fear of persecution b e c au s e of his membership in a particular social group, i.e., children of members of the G u a tem a lan military," and that he possesses a "well-founded fear of persecution should h e be removed to Guatemala due to the political opinion that would be imputed to him by the Guatemalan guerillas as a supporter of the Guatemalan government due to his father's s e rv ic e in the Guatemalan military." (Petitioner's Op. Br. at 2-3.) He relies heavily on h is mother's testimony, which, according to Perez, established that his family was " ta rg e te d for persecution by the guerillas in Guatemala due to their service in the G u a te m a la n military during the Guatemalan Civil War." (Id. at 12.) " W h e re , as here, the BIA adopts and affirms the decision of the IJ, as well as p rov ides its own reasoning for its decision, the Court reviews both the decisions of the IJ a n d the BIA." Hashmi v. Att'y Gen., 531 F.3d 256, 259 (3d Cir. 2008). An IJ's factual d e te rm in a tio n s must be upheld if supported by substantial evidence, INS v. E lia s -Z a c a r ia s , 502 U.S. 478, 481 (1992), while questions of law are reviewed de novo, B o r g e s v. Gonzales, 402 F.3d 398, 404 (3d Cir. 2005). "Findings of past and future p e rs e c u tio n are factual determinations and are accordingly subject to ... deferential re v ie w ." Al-Fara v. Gonzales, 404 F.3d 733, 738 (3d Cir. 2005). Accordingly, the IJ's d e te rm in a tio n that Perez did not establish a well-founded fear of future persecution "can

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b e reversed only if the evidence presented by [Perez] was such that a reasonable f a ctf in d e r would have to conclude that the requisite fear of persecution existed." See E lia s -Z a c a r ia s , 502 U.S. at 481; see also Singh v. Gonzales, 406 F.3d 191, 195 (3d Cir. 2 0 0 5 ). Perez seeks asylum, withholding of removal and relief under the CAT. The A tto rn e y General may grant asylum to an alien who qualifies as a "refugee," defined by th e Immigration and Nationality Act as "any person who is outside any country of such p e rs o n 's nationality ... and who is unable or unwilling to return to, and is unable or u n w illin g to avail himself or herself of the protection of, that country because of p e rs e c u tio n or a well-founded fear of persecution on account of race, religion, nationality, m em b ersh ip in a particular social group, or political opinion." 8 U.S.C. §§ 1101(a)(42), 1 1 5 8 ( b )( 1 ). "To establish eligibility for asylum, an applicant must demonstrate past p e rse c u tio n by substantial evidence or a well-founded fear of persecution that is both s u b je c tiv e ly and objectively reasonable." Singh, 406 F.3d at 195; see also Sheriff v. Att'y G e n ., 587 F.3d 584, 589 (3d Cir. 2009) ("A refugee is a `person unable or unwilling to r e tu r n to the country of that person's nationality or habitual residence because of past p erse cu tio n or because of a well-founded fear of future persecution on account of h[er] rac e, religion, nationality, membership in a particular social group, or political opinion.'" (q u o tin g Gao v. Ashcroft, 299 F.3d 266, 271-72 (3d Cir. 2002) (alteration in original))). The alien seeking asylum bears the burden of establishing that "race, religion, nationality,

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m e m b e r s h ip in a particular social group, or political opinion was or will be at least one c e n tra l reason for persecuting the applicant." 8 U.S.C § 1158(b)(1)(B)(i); see also 8 C .F .R . § 1208.13. An alien can also satisfy his burden of proof by establishing p e rs e c u tio n on account of a political opinion imputed to him by the foreign government. Lukwago v. Ashcroft, 329 F.3d 157, 181 (3d Cir. 2003); see also Chavarria v. Gonzales, 4 4 6 F.3d 508 (3d Cir. 2006). The persecution must have been "committed either by the g o v e rn m e n t or by forces that the government is either unable or unwilling to control." Mulanga v. Ashcroft, 349 F.3d 123, 132 (3d Cir. 2003); see also Lie v. Ashcroft, 396 F.3d 5 3 0 , 537 (3d Cir. 2005). "[A]lthough an applicant is not required to provide direct proof o f his persecutor's motives, `he must provide some evidence of it, direct or c irc u m s ta n tia l.'" Lukwago, 329 F.3d at 170 (quoting Elias-Zacarias, 502 U.S. at 483) (em p h asis in original). A n alien is entitled to withholding of removal to a country "if the Attorney General d e c id e s that the alien's life or freedom would be threatened in that country because of the a lie n 's race, religion, nationality, membership in a particular social group, or political o p in io n ." 8 U.S.C. § 1231(b)(3). Withholding of removal is only available if the alien m e e ts a stricter standard than asylum, namely whether "it is `more likely than not' that he o r she will be persecuted on account of race, religion, nationality, membership in a p a rtic u la r social group, or political opinion if deported to his or her home country." Singh, 406 F.3d at 196. "Given this higher standard, an applicant who does not qualify

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f o r asylum also does not qualify for withholding of removal." Guo v. Ashcroft, 386 F.3d 5 5 6 , 561 n.4 (3d Cir. 2004). In order to be eligible for protection under the CAT, an applicant must establish th a t "it is more likely than not that he will be tortured if removed." Lukwago, 329 F.3d at 1 8 2 -8 3 . "The CAT does not require a showing that the torture is on account of any p ro te c te d ground, but only applies to torture that `is inflicted by or at the instigation of or w ith the consent or acquiescence of a public official or other person acting in an official c a p ac ity.'" Id. at 183 (quoting 8 C.F.R. § 208.18(a)(1)). "[A]n alien seeking relief under th e CAT can establish that the government in question acquiesces to torture by showing th a t the government is willfully blind to a group's activities." Silva-Rengifo v. Att'y Gen., 4 7 3 F.3d 58, 69 (3d Cir. 2007). A foreign government's willingness or ability to control a p a rtic u la r group is therefore relevant, but not conclusive of, governmental acquiescence. Id. at 65. All three witnesses at the hearing ­ Perez, his mother, and his sister ­ testified that th e y did not know who kidnapped or killed Perez's father or who killed his uncles. Even th o u g h Perez's mother testified that his father's abductors left a paper identifying the F A R C , she also testified that she did not know who the FARC was other than suggesting that they might be guerillas. No evidence, beyond the cryptic note found by the mother, in d ic a te s that the FARC had ever been active in Guatemala. And, although Perez's father a n d uncles were in the Guatemalan military, Perez's father retired from the military five

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ye a r s before his kidnapping and fifteen years before his murder. Furthermore, no witness h a d any information concerning Perez's father's activities in Guatemala during the decade b etw ee n his kidnapping and murder. S im ilarly, despite Perez's assertions that the threats his sister received upon return to Guatemala indicate that, if he returned to Guatemala, his father's killers would impute to him a given political opinion, the record is devoid of any indication as to who left the an o n ym o u s notes at her hotel in Guatemala when she returned to identify her father's b o d y. Perez urges that the threatening notes received by his sister establish imputed p o litic a l opinion. This is speculative at best, as the notes contain no reference whatsoever to any opinion or motive, but merely warned her to stop investigating her father's death. Furthermore, the sister's testimony established that the authorities in Guatemala in v e stig a te d the murder and provided her with police protection, indicating that the g o v e rn m e n t was concerned with locating the perpetrators and controlling the situation. The fact that the authorities made efforts to investigate the murder countervails the notion th a t the alleged acts of persecution were committed by the Guatemalan government or by a force that the Guatemalan government was unwilling or unable to control. It also su p p o rts the IJ's conclusion that Perez could not establish fear of persecution sufficient to c a rry his burden on his asylum application. G iv e n the uncertainty surrounding the identity of who murdered Perez's father and u n c le s and the motive for those murders, we cannot say that the IJ and BIA's decisions

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w e re erroneous. Simply because Perez's father was, at one point, a member of the G u a te m a la n military does not mandate the conclusion that his killers fifteen years later a c te d based on assumptions about his political opinion. Nor do the threatening notes re c eiv e d by Perez's sister require the conclusion that some political opinion will be im p u te d to Perez or that he will be targeted as a child of a member of the Guatemalan m ilita ry, because there is no evidence indicating who wrote the notes or why the author ta rg e te d Perez's sister. See Singh, 406 F.3d at 196-97 (noting that, in cases concerning im p u te d political opinion, "[t]he focus is ... on whether this attribution [of political o p in io n to the applicant for asylum] has in fact occurred." ); see also Sangha v. INS, 103 F .3 d 1482, 1489 (9th Cir. 1997) ("To establish an imputed political opinion, the applicant m u s t show that his persecutors actually imputed a political opinion to him."). Perez asserts that he has presented "circumstantial evidence that the Guatemalan g u e rillas kidnapped [his] father and murdered [his] father and his uncles due to their se rv ice in the Guatemalan military." (Petitioner's Reply Br. at 7.) But the only c irc u m s ta n tia l evidence upon which Perez relies is the note stating "hooray for the F A R C ," allegedly left by the kidnappers, and the fact that his father and uncles served in th e military at some point in the distant past. That evidence is weak at best and, as d is c u ss e d above, leaves considerable gaps in Perez's case. Furthermore, even if the e v id e n c e could arguably support a finding of persecution, it does not compel such a f in d in g . Since the record supports the conclusion that there is insufficient evidence

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e sta b lis h in g that Perez would be persecuted based on membership in a social group or an im p u te d political opinion upon return to Guatemala, there is no basis for vacating the B IA 's decision.4 See Am. Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S. 490, 523 (1981) (" [ T ]h e possibility of drawing two inconsistent conclusions from the evidence does not p re v e n t an administrative agency's finding from being supported by substantial evidence ... ." (internal quotations omitted)). In sum, although Perez presents sympathetic c irc u m s ta n c es , the absence of evidence as to who murdered his family members and the m o tiv e for committing those murders supports the IJ and the BIA's denial of Perez's a p p lic a tio n for asylum, withholding of removal, and protection under CAT.5 B. P e re z's Due Process Rights Were Not Violated

P e re z also argues that the IJ violated his procedural due process rights "by e x p e d itin g [his] hearing in order to complete [his] case by the end of June, 2006 so as to c o m p ly with the case completion goals established by the United States Department of
4

Perez also argues "[t]he persecution of [his] father should be evaluated in light of [ P e re z 's ] age at the time [his] father was kidnapped and brutalized and the family home w a s burnt down," (Petitioner's Reply Br. at 7, relying on Hernandez-Ortiz v. Gonzales, 4 9 6 F.3d 1042, 1045 (9th Cir. 2007) ("[A]ge can be a critical factor in the adjudication of a sylu m claims and may bear heavily on the question of whether an applicant was p e rs e c u te d or whether she holds a well-founded fear of future persecution." (quoting Liu v . Ashcroft, 380 F.3d 307, 314 (7th Cir. 2004) (alteration in original))).) However, taking P e r e z 's age into consideration does not cure his inability to establish the motive of those r e sp o n s ib l e for the murders of his father and uncles. Since Perez cannot meet his burden on his application for asylum, his claim for w ith h o ld in g of removal likewise fails. Furthermore, since there is no evidence suggesting th a t Perez would suffer torture as a result of the consent or acquiescence of the G u a te m a la n government, the IJ and BIA appropriately rejected his CAT claim. 14
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Ju stice ." (Petitioner's Op. Br. at 18.) Specifically, Perez takes issue with the IJ's d e c is io n at the May 9, 2006 hearing ­ at which counsel for Perez informed the IJ that P e re z was ineligible for NACARA and that Perez sought to reinstate his initial asylum a p p lic a tio n ­ to schedule the hearing on the reinstated application for May 23, 2006. According to Perez, the IJ's expedited scheduling deprived him of additional time to in v e stig a te the identities and motives of the individuals who murdered his father and th re a te n e d his sister. "Aliens facing removal are entitled to due process." Kamara v. Att'y Gen., 420 F .3 d 202, 211 (3d Cir. 2005). In the context of removal hearings, an alien is entitled to a f u ll and fair hearing and a reasonable opportunity to present evidence. Singh v. Gonzales, 4 3 2 F.3d 533, 541 (3d Cir. 2006). To prevail on a due process claim, an alien "must s h o w that he was prevented from reasonably presenting his case." Khan v. Att'y Gen., 4 4 8 F.3d 226, 236 (3d Cir. 2006) (internal quotations omitted). Additionally, the alien m u s t establish substantial prejudice as a result of the alleged procedural error. Singh, 4 3 2 F.3d at 541. Our review of Perez's due process claim is plenary. See id. P e re z has not established that the scheduling of his hearing deprived him of due p ro c e ss . Although the hearing was scheduled two weeks after Perez reinstated his a p p lica tio n for asylum, Perez ignores the fact that he had the opportunity to investigate th e identity and motive of his father's killers long before that. Indeed, a hearing on P e re z 's initial asylum application was scheduled for April 19, 2002. The matter was

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re p e ate d ly continued, and there is no apparent reason why he could not have investigated h is claims during that time. In fact, Perez testified that he never made any such effort to id e n tif y his father's killer. Moreover, the IJ specifically asked counsel for Perez whether she had any o b je c tio n to the scheduling of the hearing on May 23, 2006 and counsel replied that she d i d not. Although the IJ indicated that she sought to abide by case completion guidelines, s h e also made clear that the requirement that Perez receive a fair hearing was of greater im p o rta n c e than the court's schedule. Additionally, the IJ stated that she would "have an o p e n mind" if Perez and his counsel established a hardship as a result of the schedule, but th e re is no indication that Perez ever sought a continuance based on the concerns he raises n o w . (App. at 160.) Accordingly, Perez cannot establish that he was precluded from p r e s e n tin g his case or that he suffered any prejudice, let alone substantial prejudice, as a re su lt of the IJ's holding the hearing when she did. Since Perez received a full and fair h e a rin g on his application, he cannot establish any due process violation.6

Perez's reliance on Hashmi v. Attorney General of the United States, 531 F.3d 256 (3d C ir. 2008) is misplaced. In that case, Hashmi was subject to removal proceedings, but his w if e , a United States citizen, had petitioned for residency based on their marriage. Id. at 2 5 7 -5 8 . The removal proceedings and the petition for residency proceeded on separate tra c k s within the Department of Homeland Security, but the government employees re sp o n s ib le for handling the respective matters failed to share information necessary for re s o lv in g both claims, delaying both proceedings. Id. at 258-59. The IJ granted three c o n tin u a n c e s of the removal proceedings because of the pending residency petition. Id. at 2 5 8 . In light of the continued delay on the residency petition through no fault of his own, H a sh m i requested an additional six-month continuance, which the government did not o p p o s e . Id. at 259. The IJ denied the request, noting his obligation to resolve the case 16

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III.

C o n c lu s io n F o r the foregoing reasons, we will deny Perez's petition for review.

within the time frame established by the DOJ's case-completion goals, and found Hashmi re m o v a b le . Id. We held that the IJ's denial of the unopposed motion for a continuance, b a se d solely on case completion goals, was an abuse of discretion and explained that c a se -c o m p letio n goals "should not be read as an end in themselves but as a means to p ro m p t and fair dispositions, giving due regard to the unique facts and circumstances of th e case." Id. at 258, 261. Unlike Hashmi, the matter before us concerns the scheduling of a hearing on a date th a t was specifically agreed to by counsel for Perez. There is no reason an IJ cannot s c h e d u le a hearing on a date that conforms to the DOJ's case completion guidelines so lo n g as the alien is not unduly prejudiced by the timeframe. Importantly, counsel for P e re z never requested a continuance and never indicated to the IJ that the scheduling p o se d a hardship for her client, despite the IJ's clear willingness to reschedule if n e c es s a ry. Accordingly, there is nothing about the circumstances of Perez's case that ra is e s concerns akin to those in Hashmi. 17