Josue Guevara-Palada v. Attorney General United State

Filing

NOT PRECEDENTIAL PER CURIAM OPINION Coram: VANASKIE, COWEN and NYGAARD, Circuit Judges. Total Pages: 4.

Case: 17-3435

Document: 003112937045

Page: 1

Date Filed: 05/22/2018

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 17-3435
___________
JOSUE GUEVARA-PALADA,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A094-770-712)
Immigration Judge: Honorable Walter A. Durling
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
May 21, 2018
Before: VANASKIE, COWEN, and NYGAARD, Circuit Judges
(Opinion filed: May 22, 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.

Case: 17-3435

Document: 003112937045

Page: 2

Date Filed: 05/22/2018

Josue Guevara-Palada, proceeding pro se, has filed a petition for review of an
order of the Board of Immigration Appeals dismissing his appeal of an Immigration
Judge’s decision for lack of jurisdiction. For the reasons that follow, we will deny the
petition for review.
Guevara-Palada is a native and citizen of Honduras. He entered the United States
without inspection in 2006 and the Department of Homeland Security removed him
shortly after his arrival pursuant to an expedited removal order. Guevara-Palada
reentered the United States without inspection four months later. In 2016, GuevaraPalada was arrested for driving under the influence and DHS reinstated his 2006 removal
order. Guevara-Palada expressed a fear of returning to Honduras. After an interview, an
asylum officer concluded that Guevara-Palada had not shown a reasonable fear of
persecution or torture in Honduras and thus did not refer his case to an Immigration
Judge for withholding of removal proceedings.
Guevara-Palada sought review of the asylum officer’s decision. An Immigration
Judge held a hearing at which Guevara-Palada was represented by counsel. In response
to questions by the IJ, Guevara-Palada affirmed that he feared returning to Honduras
based on an incident with a man named Eliseo Duarte. Guevara-Palada stated that Duarte
tried to kill him after he beat him at cards. Guevara-Palada called the police and Duarte
was arrested and deported more than five years ago. Guevara-Palada stated that Duarte
has harmed and threatened his family in Honduras.
The IJ agreed with the asylum officer that Guevara-Palada did not have a viable
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Case: 17-3435

Document: 003112937045

Page: 3

Date Filed: 05/22/2018

claim for relief from removal. The IJ issued a form order providing that Guevara-Palada
had not established a reasonable possibility that he would be persecuted on account of a
protected ground or a reasonable possibility that he would be tortured. The order stated
that it was a final order and that no administrative appeal was available.
Through counsel, Guevara-Palada filed a petition for review. We granted the
Government’s unopposed motion to remand the proceedings in order to allow the IJ to
address, among other things, Guevara-Palada’s claim under the Convention Against
Torture. See C.A. No. 16-4424, 6/16/17 Order. On remand, the IJ issued a summary
ruling, which he later amended, rejecting this claim.
Guevara-Palada, proceeding pro se, appealed to the Board of Immigration
Appeals. The BIA dismissed the appeal for lack of jurisdiction, stating that the
regulations provide that no appeal lies from an IJ’s decision reviewing a negative
reasonable fear determination. Guevara-Palada then filed the present petition for review.
Guevara-Palada argues in his brief that the IJ erred in ruling that he had not
established a reasonable fear of torture. The IJ’s decision, however, is not properly
before us. A petition for review must be filed not later than 30 days after the date of a
final order of removal. 8 U.S.C. § 1252(b)(1). This requirement is jurisdictional. VerdeRodriguez v. Att’y Gen., 734 F.3d 198, 201 (3d Cir. 2013). The BIA’s decision
dismissing Guevara-Palada’s appeal for lack of jurisdiction is the only agency decision
issued within 30 days of the filing petition for review and our scope of review in this case
is limited to that decision.
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Case: 17-3435

Document: 003112937045

Page: 4

Date Filed: 05/22/2018

Guevara-Palada does not contend that the BIA erred in dismissing his appeal, but
asserts that we may review the IJ’s decision under Martinez v. Sessions, 873 F.3d 655
(9th Cir. 2017), and Ayala v. Sessions, 855 F.3d 1012 (9th Cir. 2017). The court of
appeals in these cases reviewed the decisions of immigration judges where the BIA had
dismissed the aliens’ appeals for lack of jurisdiction. This case, however, is
distinguishable. Guevara-Palada was not misled by the agency and he cannot claim that
he did not know an appeal to the BIA was unavailable in light of the procedural history of
his case. Guevara-Palada did not file an appeal with the BIA after the IJ’s initial decision
and the cover sheet for that decision stated that no administrative appeal was available.1
Guevara-Palada states that the cover sheet for the IJ’s decision after the remand provided
that the decision was final unless an appeal to the BIA was filed, but the record reflects
that this was one of several options on the cover sheet, that the line next to that option
was not checked, and that the option did not apply. The cover sheet noted that the new
decision was attached.
Accordingly, we will deny the petition for review.

1

To the extent Guevara-Palada contends that he filed an appeal with the BIA, the
administrative record does not reflect that was the case.
4