DLD-045 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

Nos. 19-1096 & 19-2691 ___________

ANTONIO MELQUEZIDETH CASTRO, a/k/a Jose Castro Serrano, Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA ____________________________________

On Petitions for Review of Orders of the Board of Immigration Appeals (Agency No. A203-048-602) Immigration Judge: Leo A. Finston ____________________________________

Submitted on Respondent’s Motions for Summary Disposition Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 November 14, 2019 Before: RESTREPO, PORTER and NYGAARD, Circuit Judges

(Opinion filed: December 13, 2019) _________

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. In these consolidated petitions for review, Antonio Melquezideth Castro seeks

review of two orders of the Board of Immigration Appeals (BIA). The Government filed

motions for summary disposition asking us to deny the petitions. Because the petitions

present no substantial question for review, we will grant the Government’s motions and

will deny the petitions for review.

Castro, a citizen of Belize, entered the United States as a nonimmigrant visitor in

November 2000. On June 17, 2002, he pleaded guilty in New Jersey state court to

endangering the welfare of a child. See N.J. Stat. Ann. § 2C:24-4A. Based on that

conviction, the Government issued a notice to appear in September 2017, charging Castro

with removability as an alien convicted of a crime involving moral turpitude,

(a)(2)(A)(i), and a crime of child abuse,

(a)(2)(E)(i). Castro filed

an application for asylum, withholding of removal, and protection under the United

Nations Convention Against Torture, claiming that he will be persecuted and tortured in

Belize based on his membership in a particular social group of convicted sex offenders.

He also sought a continuance to “better prepare” in response to the issuance of In re A-B-

,

(A.G. 2018). Furthermore, Castro filed a motion to terminate the

proceedings on the ground that the Notice to Appear was defective because it did not

contain the date and time of his initial removal hearing, see Pereira v. Sessions,

(2018).

An Immigration Judge denied all relief and Castro appealed. The Board affirmed

the IJ’s denial of a continuance, noting that after the issuance of In re A-B- on June 11,

2018, Castro had nearly one month to prepare for his final hearing on July 9, 2018. In

2 addition, the Board concluded that Castro had failed to demonstrate that he was

prejudiced by the denial of the continuance request. With respect to Castro’s Pereira

argument, the Board held that, although Castro’s notice to appear did not specify the time

and place of his initial removal hearing, the IJ had jurisdiction because a notice of hearing

including that information was later sent to Castro. In re Bermudez-Cota, 27 I. &. N.

Dec. 441 (BIA 2018). The Board further concluded that Castro had not established

eligibility for asylum because his “fear of future persecution is not objectively

reasonable.” In particular, the BIA stated that “[o]verall, [Castro’s] belief that, upon his

removal to Belize, someone will learn of his past criminal history in the United States

and, in turn, harm him in a manner rising to the level of persecution is too speculative and

insufficiently corroborated to establish a well-founded fear of future persecution.”

Because Castro failed to satisfy the burden of proof required for asylum, the Board held

that he also necessarily failed to satisfy the clear probability standard for withholding of

removal. Finally, the Board held that Castro’s fear of harassment was “too speculative”

to demonstrate that he would more likely than not be subjected to torture if returned to

Belize. Castro filed a petition for review, which was docketed here at C.A. No. 19-1096.

Meanwhile, Castro filed with the Board a motion to reopen and to terminate the

removal proceedings, arguing that he had a pending post-conviction petition in state court

that could potentially vacate this child endangerment conviction. The Board denied the

motion to reopen, noting that the pendency of a post-conviction petition does not negate

the finality of a conviction for immigration purposes. Castro filed another petition for

review, which was docketed here at C.A. No. 19-2691. The petitions for review have

3 been consolidated. In both cases, the Government has filed a motion for summary

disposition.

We have jurisdiction under

(a) to review the Board’s final order of

removal and its denial of Castro’s motion to reopen. We review the agency’s legal

conclusions under a de novo standard, but must uphold the agency’s factual findings

“unless any reasonable adjudicator would be compelled to conclude to the contrary.”

(b)(4)(B); see also Mendoza-Ordonez v. Att’y Gen.,

(3d

Cir. 2017). Where the BIA has affirmed the IJ’s denial of a continuance request, we

apply an abuse of discretion standard. See Ponce-Leiva v. Ashcroft,

(3d Cir. 2003). An abuse of discretion standard also applies to the BIA’s denial of a

motion to reopen. See Filja v. Gonzales,

(3d Cir. 2006). That decision

is entitled to “broad deference,” Ezeagwuna v. Ashcroft,

(3d Cir.

2003), and “will not be disturbed unless [it is] found to be arbitrary, irrational, or contrary

to law,” Guo v. Ashcroft,

(3d Cir. 2004) (quoting Tipu v. INS,

(3d Cir. 1994)).

The BIA did not abuse its discretion in denying Castro’s motion for a continuance.

See

(stating that an IJ may “grant a motion for continuance for good

cause shown”). Castro sought a continuance so that he could “better prepare” for his

merits hearing in light of a recently-issued decision, In re A-B-. But that decision was

issued approximately one month before the hearing, and Castro did not indicate why that

period of time was insufficient to prepare. Furthermore, although due process “requires

that an alien be provided with a full and fair hearing and a reasonable opportunity to

4 present evidence,” Romanishyn v. Att’y Gen.,

(3d Cir. 2006), Castro

did not explain how he was prejudiced, Singh v. Gonzales,

(3d Cir.

2006). Under these circumstances, we cannot say that the denial of the continuance

request was arbitrary, irrational, or contrary to law.

The IJ and the BIA also properly rejected Castro’s reliance on Pereira. In that

case, the Supreme Court held that a notice to appear “that does not specify the ‘time and

place at which the proceedings will be held,’ as required by [8 U.S.C.]

§ 1229(a)(1)(G)(i),” is not capable of triggering the stop-time rule in cancellation of

removal cases.

. Castro argued that the immigration court lacked

jurisdiction over his proceedings because the notice to appear in his case also failed to

include the time and place of the initial removal hearing. Notably, though, we recently

rejected an attempt to extend Pereira in this manner. See Nkomo v. Att’y Gen.,

(3d Cir. 2019).

We further conclude that substantial evidence supports the BIA’s holding that

Castro is ineligible for asylum. An applicant for asylum has the burden of establishing

that he is unable or unwilling to return to his home country because of persecution or a

well-founded fear of persecution on account of, inter alia, membership in a particular

social group.

(a)(42)(A); Abdille v. Ashcroft,

(3d Cir.

2001). “[P]ersecution connotes extreme behavior, including threats to life, confinement,

torture, and economic restrictions so severe that they constitute a threat to life or

freedom.” Ahmed v. Ashcroft,

(3d Cir. 2003) (quotations omitted). It

“does not include all treatment that our society regards as unfair, unjust, or even unlawful

5 or unconstitutional.”

To establish a well-founded fear of future persecution, an alien

must show that his fear is subjectively genuine and objectively reasonable, see Zubeda v.

Ashcroft,

(3d Cir. 2003), meaning that the alien “has a subjective fear

of persecution that is supported by objective evidence that persecution is a reasonable

possibility.” Chavarria v. Gonzalez,

(3d Cir. 2006). Castro claimed

that he will be persecuted because of his membership in a particular social group

consisting of “convicted sex offenders being targeted in the Belizean community.” In

support of this claim, Castro submitted evidence that Belizean citizens have started online

efforts to publicly identify convicted sex offenders, who are ostracized in that country.

But Castro did not allege that he has been threatened, and he did not present evidence

indicating that anyone in Belize will learn of his criminal history. Moreover, as the

Board properly concluded, Castro also failed to present evidence that convicted sex

offenders have been harmed in Belize, and the discrimination he fears does not rise to the

level of persecution. See Ahmed,

. We conclude that, under these

circumstances, substantial evidence supports the BIA’s determination that Castro failed

to show that he has an objectively reasonable fear of future persecution. Because Castro

failed to establish eligibility for asylum, he necessarily failed to meet the more stringent

showing required to qualify for withholding of removal. Mudric v. Att’y Gen.,

, 102 n.8 (3d Cir. 2006). In addition, the BIA properly denied Castro’s CAT claim

because the record evidence does not compel the conclusion that he is “more likely than

not” to be tortured if returned to Belize. Tarrawally v. Ashcroft,

(3d

Cir. 2003).

6 Finally, the Board did not abuse its discretion in denying Castro’s motion to

reopen. In that motion, Castro explained that he had filed a post-conviction petition in

state court challenging his child endangerment conviction. If that petition were granted,

Castro asserted, he would no longer be removable under § 1227(a)(2)(A)(i) or

§ 1227(a)(2)(E)(i). We have held, however, that the pendency of post-conviction

petitions or other forms of collateral attack does not negate the finality of a conviction for

immigration purposes. Paredes v. Att’y Gen.,

(3d Cir. 2008).

For the above reasons, we grant the motions for summary disposition and will

deny the petitions for review. Castro’s motion for appointment of counsel, as well as his

motions for a stay of removal, are denied.1

1 The temporary administrative stays of removal issued by the Clerk on January 9, 2019, and July 22, 2019, are vacated. 7