Rolando Augustine Castellano-Chacon v. Immigration and Naturalization Service

*The Honorable D avid D . Dowd, Jr., United States District Judge for
the Northern District of Ohio, sitting by designation.
1
5RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0293P (6th Cir.)
File Name: 03a0293p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
ROLANDO AUGUSTINE
CASTELLANO-CHACON,
Petitioner,
v.
IMMIGRATION AND
NATURALIZATION SERVICE,
Respondent.
X
-
-
-
->
,
-
-
-
-
-
N
No. 02-3273
On Appeal from the Board of Immigration Appeals.
No. A78 390 991.
Argued: June 19, 2003
Decided and Filed: August 18, 2003
Before: BOGGS and GILMAN, Circuit Judges; and
DOWD, District Judge.*
2 Castellano-Chacon v. INS No. 02-3273
1United Nations Convention Against T orture and O ther Cruel,
Inhuman or Degrading Treatment or P unishment, open ed for signa ture
Feb. 4, 1985, G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51, at 197, U.N.
Doc. A/RES/39/708 (1984), reprinted in 23 I.L.M. 1027 (1984), modified
in 24 I.L.M. 535 (19 85).
_________________
COUNSEL
ARGUED: Richard R. Renner, TATE & RENNER, Dover,
Ohio, for Petitioner. Linda S. Wernery, UNITED STATES
DEPARTMENT OF J U S T I C E , OFFICE OF
IMMIGRATION LITIGATION, Washington, D.C., for
Respondent. ON BRIEF: Richard R. Renner, TATE &
RENNER, Dover, Ohio, for Petitioner. Edward C. Durant,
John C. Cunningham, UNITED STATES DEPARTMENT
OF JUSTICE, OFFICE OF IMMIGRATION LITIGATION,
Washington, D.C., for Respondent.
BOGGS, J., delivered the opinion of the court, in which
GILMAN, J., joined. DOWD, D. J. (p. 32), delivered a
separate opinion dissenting in part.
_________________
OPINION
_________________
BOGGS, Circuit Judge. Rolando Augustine Castellano-
Chacon (referred to as “Castellano” in Petitioner’s Brief)
petitions for review of a decision rendered by the Board of
Immigration Appeals (BIA) ordering his deportation after
denying his application for asylum, application for
withholding of removal under the Immigration and
Nationality Act (INA), and request for withholding of
removal pursuant to the legislation implementing Article 3 of
the Convention Against Torture.1 Castellano contends that
the BIA did not properly consider his claim, which is founded

-- 1 of 16 --

No. 02-3273 Castellano-Chacon v. INS 3
on a fear of persecution should he return to Honduras, as a
result of his former membership in a street gang. Castellano
additionally appeals the BIA’s decision on two procedural
grounds. First, Castellano claims that he was effectively
denied a fair hearing in violation of his due process rights
because his counsel was not allowed to make an opening and
closing statement at his removal hearing. Second, Castellano
claims that the BIA erred in not ruling on his motion to
correct the transcript of his immigration hearing. For the
reasons set forth in this opinion, we deny Castellano’s
Petition for Review and affirm the BIA’s decision.
I
Background
Castellano, a native of Honduras, illegally entered the
United States in February 1992, when he was sixteen years
old. At the age of eighteen, while living in Hempstead, New
York, Castellano joined the “MS 13" gang, named after 13th
Street in Los Angeles, and received a number of tattoos as
part of his initiation process. In his application for asylum,
Castellano described and explained the meaning of these
tattoos:
About two months after I joined MS 13, I got tattooed.
Other MS 13 members did the tattoos. I have a 13 on my
chin. This signifies my membership in MS 13. The
three dots below the corner of my right eye signify the
crazy life. The tear drop below the corner of my left eye
signifies the memory of a friend (called “El Mago”) who
was killed by a rival gang. On my chest, I have tattoos
for “M”, “S”, “Honduras”, and “13". These mean that I
belonged to MS 13, and I am from Honduras. On my
right arm I have “MS” in Roman letters, and “Mi Vida
Loca” which means my crazy life. On my right shoulder,
I have tattoos of theater masks with sad and happy faces.
To me this means that sometimes we are sad, like when
somebody dies, and sometimes we are happy, like when
4 Castellano-Chacon v. INS No. 02-3273
we drink, dance, and find girls. On my left shoulder, I
have a cross. On my left arm, I have “XIII”, Roman
numerals for 13. On my back, I have a tattoo that says
“sureno”, to means [sic] that I come from the South. On
the ring and middle fingers of my right hand, I have
tattoos of “N” and “Y” to show I was from New York.
On the index, middle and ring fingers of my left hand, I
have tattoos of “H”, “L” and “S”. The H means I was
from Hempstead. The “L” was for “La Vida Loca”, the
crazy life. The “S” is for “Salvatrucha,” which
represents the Salvadoran roots of the gang. On the back
of my left hand, near the wrist, I have three dots. They
also represent the crazy life. I got the tattoos during one
week, a few each day.
Castellano stated that he did not realize what he was getting
into when he joined the gang and in July 1998, he decided to
leave MS 13, because of the violence of gang life and the fact
that so many members were “going to jail for life.”
Castellano was concerned that the gang would retaliate
against him and his family for leaving, so he moved to
Baltimore.
After getting into a violent fight with one of his roommates
in Baltimore, Castellano moved to North Carolina, where he
purchased false identification papers on the black market in
order to take a job. After a brief stint in jail in New York in
1999, Castellano returned to North Carolina and then moved
to Ohio. In April 2001, Castellano got a job with a nursery in
Berlin Heights, Ohio, for which he needed a car so that he
could get back and forth to work. However, when Castellano
applied for the title, using the identification papers that he had
purchased in North Carolina, he was arrested for using false
identification and sentenced to a 30-day jail term.
While Castellano was in jail, he was served with a Notice
to Appear (NTA) on June 12, 2001, charging him with being
removable under section 212(a)(6)(A)(i) of the Immigration
and Nationality Act (INA), 8 U.S.C. § 1182(a)(6)(A)(i), since

-- 2 of 16 --

No. 02-3273 Castellano-Chacon v. INS 5
he was “[a]n alien in the United States [who had not been]
admitted or paroled.” At Castellano’s removal proceeding on
August 3, 2001, he conceded removability on the basis of the
allegations included in the NTA, but sought asylum, based on
a “change of country conditions.” Castellano claimed that
since he had left Honduras, the conditions in his country had
changed to the extent that people with gang tattoos were now
being persecuted. Castellano admitted that he had been in the
United States for at least nine years and had not, until now,
requested asylum because he had only recently learned about
the extrajudicial executions of gang members in Honduras.
On September 28, 2001, a hearing was held on Castellano’s
application for asylum. Castellano first presented a statement
by expert witness Professor Jeff Stewart, which was admitted
into evidence by the Immigration Judge (IJ). Professor
Stewart’s statement essentially described the deteriorating
conditions in Honduras since “Hurricane Mitch” devastated
the country in 1998. The professor explained that the
economic consequences of this natural disaster led to a
general rise in the level of violence in Honduras, and
subsequently a steep increase in the number of extra-judicial
murders committed by Honduran security forces and/or
paramilitary groups, specifically targeting young men with
tattoos, who were assumed to be gang members involved in
criminal activities. The professor testified that the targeting
of gang members is seen by those in power in Honduras as a
“form of acceptable ‘social cleansing.’” Professor Stewart
concluded that Castellano “faces the grave probability of
death at the hands of government forces due to his previous
gang affiliation and numerous tattoos.”
A number of sources were cited by Professor Stewart in
support of his statements regarding the targeting of gang
members. The general theme of these reports was that
children who are assumed to be in gangs, because of tattoos
or for other reasons, are at grave risk of being killed or
tortured in Honduras, either by state security forces or
vigilante groups that appear to act with impunity.
6 Castellano-Chacon v. INS No. 02-3273
2Casa Alianza is a non-profit organization “dedicated to the
rehabilitation and defense of street children” in Guatemala, Honduras,
Mexico, and N icaragua. See About Casa Alianza at http://www.casa-
alianza.org/E N/about/.
3Professor Stewart adm itted on cross-exam ination that the Casa
Alianza reports he cited, which focused on “gang youth,” were referring
to people twenty-three-years old or younger, whereas Castellano is
twenty-seven-years old, and no longer a “youth.”
Furthermore, when arrested, children frequently face the use
of excessive force by the State, including extra-judicial
executions. For example, Casa Alianza2 reported a rapid rise
in extrajudicial murders since 1998, including the killing of
more than 820 “gang youth and street children” during the
period from January 1998 to June 2001. CODEH, the
Honduran Committee for the Defense of Human Rights,
reported a number of “execution-style” shootings of juvenile
delinquents, and Time magazine, along with Casa Alianza,
reported on the orchestration of, or at least reckless disregard
for, gang on gang violence within the Honduran prison
system. The State Department’s 2000 report on human rights
practices in Honduras, released by the Bureau of Democracy,
Human Rights, and Labor, also reported that Honduran
government officials have been involved in targeting children
suspected of being in gangs. Finally, the Special Rapporteur
of the United Nations Commission on Human Rights, Asma
Jahangir, reported after visiting Honduras in the summer of
2001 that the Honduran media had contributed to the problem
by targeting “tattooed youth,” linking them directly to gangs
and crime. Jahangir found the government to be involved in
at least “some” of the known extra-judicial killings of
children. In sum, there is evidence of the Honduran
government directly or indirectly persecuting children3
suspected of being in gangs.
In response to the government’s contention that
Castellano’s application for asylum was untimely, Castellano
testified to the fact that he had not become aware of the

-- 3 of 16 --

No. 02-3273 Castellano-Chacon v. INS 7
developing violence in Honduras, specifically targeted at
gang members, until May 2001 when he saw news reports on
television while he was in jail. The jail in which Castellano
was housed had cable television, and so Castellano was able
to view several Spanish news programs not available to him
earlier. In support of Castellano’s testimony, Professor
Stewart testified at the hearing and explained that it was not
surprising that Castellano would have been unaware of the
changed conditions in Honduras, since “Central American
refugees” have virtually no access to these sorts of news
reports “particularly concerning . . . gang violence.”
Nevertheless, on cross-examination, Castellano admitted that
he had been afraid of deportation and subsequent prosecution
as early as 1998 when he avoided the police after getting into
a fight with his roommate in Baltimore. In relevant part, the
following exchange took place between the government
lawyer and Castellano:
Q: On page 4 of your supplemental application, Item 11,
as you talk about getting into a fight with a man where
you hit his door with a knife and then you say I was
afraid that if I went to the police to explain, they would
deport me.
A: It’s true. I was afraid, yes.
Q: Were you afraid of gangs then too?
A: Yes, because I didn’t want to go back there because
they would kill me.
Q: So you were afraid of gangs in ‘98 then?
A: I think about that. I just fought with that guy, but I
was afraid that they were going to deport me, yes.
On October 10, 2001, the IJ denied Castellano’s application
for asylum, his application for withholding of removal, and
his application for relief pursuant to the Convention Against
Torture. The IJ found that Castellano’s application for
asylum was time barred and that in any case Castellano had
not demonstrated the requisite criteria for being a refugee as
defined in Section 101(a)(42)(A) of the INA, 8 U.S.C.
§ 1101(a)(42)(A), and reiterated in INS v. Zacarias, 502 U.S.
8 Castellano-Chacon v. INS No. 02-3273
478, 481 (1992) (stating that a refugee is defined by the INA
as an alien who is unable or unwilling to return to his home
country “because of persecution or a well-founded fear of
persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion.”
(quoting 8 U.S.C § 1101(a)(42)(A))). The IJ additionally did
“not find a claim to be made out” with respect to Castellano’s
application for withholding of removal. Finally, the IJ, in
denying Castellano’s application for relief pursuant to the
Convention Against Torture, found that although Castellano
had provided evidence of “general violence,” he had not
provided sufficient evidence to demonstrate that he would,
“more likely than not,” be at risk of being tortured if he
returned to Honduras. 8 C.F.R. §§ 208.16-18 (2001).
On February 22, 2002, the Board of Immigration Appeals
(BIA) affirmed the IJ’s decision. Specifically, the BIA noted
with respect to Castellano’s application for asylum, that he
had not “provide[d] an adequate basis to excuse his failure to
file the application [on time],” and explicitly agreed with the
IJ’s conclusion that Castellano had “failed to establish a
nexus between any mistreatment he may suffer and one of the
protected grounds under the Act,” thereby independently
disposing of both his application for asylum and his
application for withholding of removal. Finally, the BIA
agreed with the IJ’s denial of Castellano’s claim under the
Convention Against Torture, since “general conditions of
violence and gross human rights violations are not sufficient
ground[s] for determining that a particular person would be
subjected to torture.” Castellano was subsequently removed
to Honduras in April 2002.
II
Application for Asylum
Section 208(a)(2)(B) of the INA, 8 U.S.C. § 1158(a)(2)(B),
requires aliens to apply for asylum within one year of their
arrival in the United States, but allows an untimely

-- 4 of 16 --

No. 02-3273 Castellano-Chacon v. INS 9
4In fact, the one-year filing period commences eithe r on the alien’s
day of arrival in the United States or on April 1, 1997, whichever is later.
8 C.F.R. § 204.4(a)(2)(ii). Since Castellano entered the U nited States in
1992, the one-year filing period commenced for him on April 1, 1997.
However, since Castellano did not apply for asylum until 2001, he was
well outside of the o ne-year filing period established by the INA, and
therefore his application is not timely. These facts are undisputed.
application to be considered if there are changed
circumstances materially affecting the applicant’s eligibility
for asylum or extraordinary circumstances that would justify
the delay.4 8 U.S.C. § 1158(a)(2)(D).
Castellano contends that the BIA erred in finding his
application to be untimely, since he filed his application
within one year of learning about the possibility of
persecution in Honduras. Before turning to the merits of his
claim, however, we must address the threshold question of
whether we have jurisdiction to review the BIA’s final
decision that Castellano’s application is untimely. The INA
states in relevant part:
§ 1158 Asylum
(a) Authority to apply for asylum
(1) In general
Any alien who is physically present in the United
States or who arrives in the United States, . . .
irrespective of such alien’s status, may apply for
asylum in accordance with this section or, where
applicable, section 1225(b) of this title.
(2) Exceptions
. . .
(B) Time Limit
Subject to subparagraph (D), paragraph (1) shall
not apply to an alien unless the alien demonstrates
by clear and convincing evidence that the
application has been filed within 1 year after the
date of the alien’s arrival in the United States.
. . .
10 Castellano-Chacon v. INS No. 02-3273
(D) Changed circumstances
An application for asylum of an alien may be
considered . . . if the alien demonstrates to the
satisfaction of the Attorney General either the
existence of changed circumstances which
materially affect the applicant’s eligibility for
asylum or extraordinary circumstances relating to
the delay in filing an application within the period
specified in subparagraph (B).
(3) Limitation on judicial review
No court shall have jurisdiction to review any
determination of the Attorney General under
paragraph (2).
8 U.S.C. § 1158.
Although the Supreme Court has articulated a presumption
favoring judicial review of administrative action, that
presumption may be overcome by specific statutory language
precluding review, such as the language of 8 U.S.C.
§ 1158(a)(3), or “specific legislative history that is a reliable
indicator of congressional intent.” Block v. Cmty. Nutrition
Inst., 467 U.S. 340, 349 (1984). The government contends
that this court does not have jurisdiction to review
Castellano’s claim since paragraph (3) explicitly states that a
decision taken under paragraph (2) is not reviewable by any
court, thereby overcoming the presumption in favor of
judicial review.
Castellano argues in response that 8 U.S.C. § 1158(a)(3) is
“imprecise” and trumped by two other provisions of the INA,
included in section 242 of the INA, 8 U.S.C. § 1252, which
specifically provide for judicial review of decisions made
under 8 U.S.C. § 1158(a), thereby producing an ambiguity
and creating doubt as to whether Congress did in fact intend

-- 5 of 16 --

No. 02-3273 Castellano-Chacon v. INS 11
5Castellano also argues that the plain language of 8 U.S.C.
§1158 (a)(3), only co vers ac tions of the “Attorney General” and not
decisions of the Board of Immigration Appeals or other subordinate
officials. However, the Board of Appeals acts here for the Attorney
General as his delegate, and it is to both the Attorney G eneral and his
delegates that Congress has assigned the task of making these difficult
decisions pursuant to the INA . See INS v. C ardoza-Fonseca, 480 U.S.
421, 444 -45 (1 987 ). Congress did no t expect the Attorney G eneral to
exercise his discretion in suspension of deportation cases personally, and,
under the rule-m aking authority, he can d elegate his authority. Jay v.
Boyd, 351 U.S. 345 , 351 (1956 ).
to bar judicial review under these circumstances.5 8 U.S.C.
§ 1252(a)(2)(B) states in relevant part that:
Notwithstanding any other provision of law, no court
shall have jurisdiction to review . . . any other decision or
action of the Attorney General the authority for which is
specified under this subchapter to be in the discretion of
the Attorney General, other than the granting of relief
under section 1158(a) of this title.
(emphasis added). In addition, 8 U.S.C. § 1252(b)(4)(D)
states that “the Attorney General’s discretionary judgment
whether to grant relief under section 1158(a) of this title shall
be conclusive unless manifestly contrary to the law and an
abuse of discretion.” Castellano argues that these provisions
can be seen as permitting review of all decisions made under
1158(a), including those relating to the timeliness of an
application, and that the standard of review to be applied is
whether the BIA’s decision was “manifestly contrary to the
law and an abuse of discretion.” Castellano, having outlined
these two conflicting interpretations, labels the conflict an
“ambiguity” in the statute and argues that in addition to the
presumption of judicial review of administrative actions, there
is a presumption favoring the alien when interpreting any
ambiguities in the language of the INA, which requires this
court to resolve the question of reviewability in Castellano’s
favor. See, e.g., INS v. Cardoza-Fonseca, 480 U.S. 421, 449
(1987) (restating the “longstanding principle of construing
12 Castellano-Chacon v. INS No. 02-3273
any lingering ambiguities in deportation statutes in favor of
the alien.” (citing INS v. Errico, 385 U.S. 214, 225 (1966),
Costello v. INS, 376 U.S. 120, 128 (1964), and Fong Haw
Tan v. Phelan, 333 U.S. 6, 10 (1948))).
Despite the various presumptions working in Castellano’s
favor, these presumptions are not controlling where there is
no ambiguity, and there is no ambiguity if, as in this case, the
“congressional intent to preclude judicial review is ‘fairly
discernable [from] the statutory scheme.’” Block, 467 U.S. at
351 (quoting Data Processing Serv. v. Camp, 397 U.S. 150,
157 (1970)). It is not necessary to interpret 8 U.S.C. § 1252
as providing an affirmative grant of jurisdiction in conflict
with 8 U.S.C. § 1158(a)(3), as it can be understood to extend
only to decisions made pursuant to 8 U.S.C. § 1158(a)(1). In
other words, 8 U.S.C. § 1252(a)(2)(B) and 8 U.S.C.
§ 1252(b)(4)(D) are referring to 8 U.S.C. § 1158(a) generally,
which deals with the granting of asylum, whereas 8 U.S.C.
§ 1158(a)(3) specifically addresses 8 U.S.C. § 1158(a)(2).
Moreover, such an interpretation is fully consistent with the
statutory scheme, which generally prohibits judicial review of
discretionary decisions taken by the Attorney General under
the INA. See, e.g., 8 U.S.C. § 1252(a)(2)(B)(ii). Were we to
accept Castellano’s argument, other specific prohibitions on
judicial review relating to discretionary decisions made by the
Attorney General in other parts of the INA outside of 8
U.S.C. § 1158(a), but nevertheless within this subchapter,
would be redundant, since 8 U.S.C. § 1252(a)(2)(B) precludes
review of “any other decision or action of the Attorney
General the authority for which is specified under this
subchapter to be in the discretion of the Attorney General.”
See, e.g., 8 U.S.C. § 1158(b)(2)(D) (limiting judicial review
of the Attorney General’s determinations regarding the
inadmissibility of aliens implicated in terrorist activity).
Although this is a question of first impression before the
Sixth Circuit, other circuits have addressed this issue and
have unanimously concluded that the federal courts lack
jurisdiction to review BIA determinations on the timeliness of

-- 6 of 16 --

No. 02-3273 Castellano-Chacon v. INS 13
61951 United Nations Convention Relating to the Status of Refugees,
opened for signature July 28, 1951 , G.A. Res. 429[V], 189 U.N.T.S. 137.
7United Nations Protocol relating to the Status of Refugees, opened
for signature Jan. 31, 1967, G.A. Res. 2198 [XXI], 19 U.S.T. 6223, 606
U.N.T.S., 267.
an asylum application. See Hailu v. I.N.S., No. 02-1645, 2003
WL 1821468 at *1 (4th Cir. Apr. 8, 2003); Tsevegmid v.
Ashcroft, 318 F.3d 1226, 1229-30 (10th Cir. 2003); Fahim v.
U.S. Att’y Gen., 278 F.3d 1216, 1217-18 (11th Cir. 2002);
Ismailov v. Reno, 263 F.3d 851, 854-55 (8th Cir. 2001);
Hakeem v. INS, 273 F.3d 812, 815 (9th Cir. 2001). The
general consensus among the circuits is that “[t]he meaning
of § 1158(a)(3) is clear: Congress intended to bar judicial
review of decisions made under § 1158(a)(2).” Ismailov, 263
F.3d at 855. We join our sister circuits on this point and hold
that we are barred from reviewing the BIA’s decision denying
Castellano’s application on the basis that it was untimely and
must therefore affirm the BIA’s decision on this point.
As a last-ditch effort, Castellano argues in his Reply Brief
that the government’s interpretation of the INA dealing with
the reviewability of the timeliness of an application for
asylum would result in a breach by the United States of its
obligations under the 1951 United Nations Convention
Relating to the Status of Refugees (the Refugee Convention).6
First, the United States is not a party to the Refugee
Convention. However, by acceding to the Refugee Protocol
in 1968,7 the United States undertook obligations under the
Refugee Convention, since the Protocol incorporates the
substantive provisions of Articles 2 through 34 of the Refugee
Convention. Nevertheless, Castellano cannot circumvent the
INA and make a claim under the Refugee Protocol, since it is
not self-executing, INS v. Stevic, 467 U.S. 407, 428 n.22
(1984) (noting that the Protocol was not intended to be self-
executing, and serves only as a useful guide in determining
congressional intent in enacting the Refugee Act), and
14 Castellano-Chacon v. INS No. 02-3273
therefore is not judicially enforceable law in the United
States. See Bannerman v. Snyder, 325 F.3d 722, 724 (6th Cir.
2003) (citing Buell v. Mitchell, 274 F.3d 337, 372 (6th Cir.
2001), for the proposition that the International Covenant on
Civil and Political Rights, adopted by the U.N. General
Assembly on Dec. 19, 1966, 999 U.N.T.S. 171 and ratified by
the United States on April 2, 1992, is not judicially
enforceable law since it is not self executing, and “non-self-
executing agreements will not be given effect as law in the
absence of necessary authority.” (quoting the Restatement
(Third) of Foreign Relations Law § 111 (1987))). Second, the
United States’ treaty obligations on this score are
implemented in section 241(b)(3) of the INA, 8 U.S.C.
§ 1231, which deals with applications for withholding of
removal and does not provide a time limit.
III
Application for Withholding of Removal
Withholding of removal pursuant to section 241(b)(3) of
the INA, 8 U.S.C. § 1231(b)(3), corresponds to the non-
refoulement obligation in Article 33 of the Refugee
Convention, prohibiting the deportation or removal of anyone
whose life or freedom would be threatened in his or her home
country on account of one of the same five grounds necessary
for asylum (race, religion, nationality, membership in a
particular social group, or political opinion). Unlike an
application for asylum, however, a grant of an alien’s
application for withholding is not a basis for adjustment to
legal permanent resident status, family members are not
granted derivative status, and it only prohibits removal of the
petitioner to the country of risk, but does not prohibit removal
to a non-risk country. Furthermore, a greater quantum of
proof is required as to the likelihood of persecution in the
country of risk in order to establish eligibility for
withholding. In other words, the courts consider the same
factors to determine eligibility for both asylum and

-- 7 of 16 --

No. 02-3273 Castellano-Chacon v. INS 15
withholding, but in the case of withholding, a higher
probability of persecution is required.
The standard of review requires us to uphold the BIA’s
determination against withholding the removal of an alien,
unless it is “manifestly contrary to the law.” Ali v. Reno, 237
F.3d 591, 596 (6th Cir. 2001) (citing 8 U.S.C.
§ 1252(b)(4)(B)and (C)). Furthermore, any administrative
findings of fact are “conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary.”
Ibid.
In order to qualify for withholding, Castellano must
demonstrate that there is a clear probability that he would be
subject to persecution if he were to return to Honduras,
“because of [his] race, religion, nationality, membership in a
particular social group, or political opinion.” 8 U.S.C.
§ 1231(b)(3)(A); Mikhailevitch v. INS, 146 F.3d 384, 391 (6th
Cir. 1998) (holding that in order to qualify for withholding of
deportation, the petitioner “must demonstrate that there is a
clear probability that he would be subject to persecution”
were he to return to his native country). We must determine,
therefore, 1) whether Castellano is in fact a member of a
“particular social group” for purposes of the statute; and
2) whether Castellano has presented sufficient evidence to
compel a finding that he would, more likely than not, be
persecuted on the basis of that membership. See Stevic, 467
U.S. at 424 (reaffirming that the “clear-probability standard”
is equivalent to asking “whether it is more likely than not that
the alien would be subject to persecution.”).
The IJ found that Castellano was not a member of a
particular social group. The BIA incorporated the IJ’s
findings and affirmed the decision, but focused instead on the
lack of a nexus between Castellano’s status and the potential
for persecution, stating in relevant part:
Overall, [Castellano] has not borne his burden to
establish eligibility for asylum because there is not a
16 Castellano-Chacon v. INS No. 02-3273
viable claim nor any evidence at all that the claim relates
to the respondent’s race, religion, nationality,
membership in a particular social group or political
opinion.
This determination, explicitly referring to Castellano’s
application for asylum, applies a fortiori to Castellano’s
eligibility for withholding of removal. Castellano argues on
appeal that the IJ and the BIA, having made no adverse
finding regarding Castellano’s credibility, erred in denying
his claim for withholding of removal. Castellano contends
that he has presented sufficient evidence to establish that if he
returns to Honduras, he will be persecuted as a result of his
former membership in a gang, and that his former
membership in MS 13 constitutes membership in a “particular
social group” pursuant to the INA.
A. Membership in a particular social group
Although membership in a particular social group has
increasingly been invoked as a basis for asylum and
withholding claims, defining what constitutes such a group
for purposes of the INA remains elusive and inconsistent.
The circuits that have taken a position on this issue have
adopted overlapping definitions that resemble variations on a
common theme. The First, Third, and Seventh Circuits have
explicitly adopted the BIA’s approach, which defined the
term “particular social group” as composed of individuals
who share a “common, immutable characteristic.” Lwin v.
INS, 144 F.3d 505, 511 (7th Cir. 1998); Fatin v. INS, 12 F.3d
1233, 1239 (3d Cir. 1993); Alvarez-Flores v. INS, 909 F.2d 1,
7 (1st Cir. 1990). The Ninth Circuit initially adopted a
“voluntary associational relationship” definition of a social
group, under which the term implies “a collection of people
closely affiliated with each other, who are actuated by some
common impulse or interest.” Sanchez-Trujillo v. INS, 801
F.2d 1571, 1576 (9th Cir. 1986) (looking to various sources
of international law for guidance). In a more recent decision,
the Ninth Circuit rearticulated its approach in an effort to

-- 8 of 16 --

No. 02-3273 Castellano-Chacon v. INS 17
“harmoniz[e] it with [the BIA’s] immutability requirement.”
Hernandez-Montiel v. INS, 225 F.3d 1084, 1093 n.6 (9th Cir.
2000). The court recognized that groups sharing immutable
characteristics, such as a familial relationship, or one’s sexual
orientation and sexual identity, would not necessarily fit
within the Sanchez definition, with its focus on a “voluntary
associational relationship” and therefore expanded the
definition, holding that a “‘particular social group’ is one
united by a voluntary association, including a former
association, or by an innate characteristic that is so
fundamental to the identities or consciences of its members
that members either cannot or should not be required to
change it.” Hernandez-Montiel, 225 F.3d at 1093 (emphasis
in original). See also Safaie v. INS, 25 F.3d 636, 640 (8th Cir.
1994) (adopting the Ninth Circuit’s broad approach, citing
Sanchez-Trujillo, 801 F.2d at 1576, as well as Ananeh-
Firempong v. INS, 766 F.2d 621, 626 (1st Cir. 1985) and
Matter of Acosta, 19 I. & N. Dec. 211, 233-34 (BIA 1985)).
The Second Circuit has taken yet another approach. In
Gomez v. INS, 947 F.2d 660, 664 (2d Cir. 1991), the Second
Circuit adopted the Ninth Circuit’s “voluntary associational
relationship” standard, but additionally noted that the
members of a social group must be externally distinguishable.
“Like the traits which distinguish the other four enumerated
categories – race, religion, nationality and political opinion –
the attributes of a particular social group must be recognizable
and discrete.” Ibid. See also Saleh v. United States Dep’t of
Justice, 962 F.2d 234, 240 (2d Cir. 1992).
We have not previously stated a specific test in the Sixth
Circuit, and in doing so now we recognize the deference due
the BIA’s interpretation of the INA insofar as it reflects a
judgment that is peculiarly within the BIA’s expertise. We
therefore join the First, Third, and Seventh Circuits in
adopting the BIA’s definition of a “particular social group.”
See generally Fieran v. INS, 268 F.3d 340, 344 (6th Cir.
2001); Chevron U.S.A., Inc. v. Natural Res. Def. Council,
Inc., 467 U.S. 837, 842 (1984). Nevertheless, we return to the
original decision of the BIA, which established that standard,
18 Castellano-Chacon v. INS No. 02-3273
in order to gain a fuller understanding of what it means to say
that the members of a social group must share a “common,
immutable characteristic.”
In Matter of Acosta, 19 I. & N. Dec. 211, 233 (BIA 1985),
the BIA held that a Salvadoran Taxi cooperative did not
constitute a particular social group, even though the members
were being persecuted because they refused to participate in
work stoppages. The BIA reasoned that the characteristic of
being a taxi driver was not immutable since the drivers could
change jobs and the “concept of a refugee simply does not
guarantee an individual a right to work in the job of his
choice.” In so doing, the BIA undertook a careful analysis of
the term “particular social group” and stated in relevant part:
[W]e interpret the phrase ‘persecution on account of
membership in a particular social group’ to mean
persecution that is directed toward an individual who is
a member of a group of persons all of whom share a
common, immutable characteristic. The shared
characteristic might be an innate one such as sex, color,
or kinship ties, or in some circumstances it might be a
shared past experience such as a former military
leadership or land ownership. The particular kind of
group characteristic that will qualify under this
construction remains to be determined on a case-by-case
basis. However, whatever the common characteristic
that defines the group, it must be one that the members of
the group either cannot change, or should not be required
to change because it is fundamental to their individual
identities or consciences . . . . By construing
‘persecution on account of membership in a particular
social group’ in this manner, we preserve the concept that
refuge is restricted to individuals who are either unable
by their own actions, or as a matter of conscience should
not be required, to avoid persecution.
Id. at 233-34.

-- 9 of 16 --

No. 02-3273 Castellano-Chacon v. INS 19
8For example, the Supreme Court of Canada has defined a “particular
social group” to encompass 1) groups defined by an innate or
unchangeable characteristic; 2) groups whose m emb ers voluntarily
associate for reasons so fundamental to their human dignity that they
should not be forced to forsake that association; and 3) groups associated
by a former voluntary status, unaltera ble due to its historical permanence.
Ward v. Canad a (M inister of Em ployment & Immigration), [1993] 2
Using this standard, the BIA has recognized several social
groups, such as young women of the Tchamba-Kunsuntu tribe
of northern Togo who did not undergo female genital
mutilation as practiced by that tribe and who opposed the
practice, In Re Fauziya Kasinga, 21 I. & N. Dec. 357 (BIA
1996); members of the Marehan subclan of Somalia, who
share ties of kinship and linguistic commonalities, In Re H–,
21 I. & N. Dec. 337 (BIA 1996); homosexuals in Cuba,
Matter of Toboso-Alfonso, I. & N. Dec. 819 (BIA 1990); and
former members of the national police of El Salvador, Matter
of Fuentes, 19 I. & N. Dec. 658 (BIA 1988). Each of these
groups share an immutable characteristic, or at least a
fundamental characteristic that “either cannot [be] change[d],
or should not be required to [be] change[d] because it is
fundamental to [the members’] individual identities or
consciences.”
Since Acosta, The Office of the United Nations High
Commissioner for Refugees (UNHCR) has published
guidelines on the definition of a “particular social group” that
deal specifically with the question of whether the definition
should be based primarily on “internal” factors, such as innate
characteristics, or whether it is appropriate to consider the
“external” perception of the group in determining whether or
not such a group exists for purposes of the Refugee
Convention. Guidelines on International Protection:
“Membership of a particular social group” within the context
of Article 1A(2) of the 1951 Convention and/or its 1967
Protocol relating to the Status of Refugees, U.N. Refugee
Agency, U.N. Doc. HCR/GIP/02/02 (2002). This question,
which has divided courts in various countries,8 is evident in
20 Castellano-Chacon v. INS No. 02-3273
S.C.R. 689 , ¶ 78. W hereas the Australian High Court has held that the
existence of a “particular social group” “depends, in most, perhaps all
cases on external perceptions of the group. The notion of persecution for
reasons of membership of a particular social group implies that the group
must be identifiable as a social unit.” Applicant A v. Minister for
Immigration and Ethnic A ffairs (1997) 190 CLR 225, 264 (McH ugh J.);
Minister for Immigration and Multicultural Affairs v. Applicant Z (2001)
116 FCR 36, ¶ 11.
our own jurisprudence as well, as exemplified by the
“external” approach taken by the Second Circuit in Gomez,
but not by other circuits in the country thus far. Specifically,
the UNHCR guidelines suggest defining a “particular social
group” as:
[A] group of persons who share a common characteristic
other than their risk of being persecuted, or who are
perceived as a group by society. The characteristic will
often be one which is innate, unchangeable, or which is
otherwise fundamental to identity, conscience or the
exercise of one’s human rights.
Id. at ¶ 11 (emphasis added).
The UNHCR takes the Second Circuit’s approach, in that
the external perception of the group can be considered as an
additional factor in the overall calculus of what makes up a
“particular social group.” However, we recognize that the
UNHCR guidelines are not binding and furthermore the BIA,
to whom we owe deference, has on occasion explicitly
distinguished its own interpretation of the Protocol from the
UNHCR. See, e.g., Acosta, 19 I. & N. Dec. at 228 (noting
that “to the extent that the UNHCR’s position in the
Handbook does not require an individual to show he is likely
to become a victim of persecution, we find that position to be
inconsistent with Congress’ intention and with the meaning
of the protocol.”). Yet, the BIA has, since Acosta, stated that
for a “group to be viable for asylum purposes, we believe
there must also be some showing of how the characteristic is

-- 10 of 16 --

No. 02-3273 Castellano-Chacon v. INS 21
understood in the alien’s society, such that we, in turn, may
understand that the potential persecutors in fact see persons
sharing the characteristic as warranting suppression or the
infliction of harm.” In re R-A-, 22 I. & N. Dec. 906, *11
(BIA 1999) vacated by the Attorney General on January 19,
2001 in light of a proposed rule published at 65 Fed. Reg.
76588, which has since been withdrawn. See 2003 Immigr.
Bus. News & Comment Daily 42 (March 7, 2003).
While we refrain from incorporating into our own
definition of a “particular social group” the UNHCR’s
guidance on this topic, we take note of the BIA’s recent
decision, In re R-A-, and note that this language suggests that
the BIA may be moving in the direction of recognizing that
the external perception of a group is a relevant factor to
consider in making a determination as to whether a group fits
within the INA’s definition of a particular social group. In
other words, society’s reaction to a “group” may provide
evidence in a specific case that a particular group exists, as
long as the reaction by persecutors to members of a particular
social group is not the touchstone defining the group. As the
BIA continues to revise and evaluate its own definition of a
particular social group, our definition may evolve in the same
way as the BIA’s, with the caveat that the BIA must continue
to make a reasonable interpretation of the statute, as it has
thus far.
The IJ in Castellano’s case relied on Bastanipour v. I.N.S.,
980 F.2d 1129 (7th Cir. 1992), in determining that his former
membership in the MS 13 gang did not constitute
membership in a particular social group. In Bastanipour, the
Seventh Circuit held that drug traffickers do not constitute a
“particular social group” for purposes of the INA. The court
reasonably noted that the INA was “surely not intended for
the protection of members of the criminal class in this
country, merely upon a showing that a foreign country deals
with them even more harshly than we do. A contrary
conclusion would collapse the fundamental distinction
between persecution on the one hand and the prosecution of
22 Castellano-Chacon v. INS No. 02-3273
nonpolitical crimes on the other.” Id. at 1132 (citations
omitted). While this may be true, gang membership cannot
be equated to a criminal activity such as drug trafficking,
unless that is its only purpose, and thus Bastanipour is not on
point. Furthermore, “former members of the MS-13 gang” is
not the social group properly at issue in this case.
While it is possible to conceive of the members of MS 13
as a particular social group under the INA, sharing for
example the common immutable characteristic of their past
experiences together, their initiation rites, and their status as
Spanish-speaking immigrants in the United States, when one
examines the evidence in this case, Castellano is not arguing
that he will be persecuted on the basis of his membership in
MS 13. Instead, the evidence he has presented establishes, at
best, that “tattooed youth” are targeted and prosecuted. As a
result, we can only rule in Castellano’s favor if we hold that
“tattooed youth” constitute a social group, which we decline
to do.
While it is apparent that the definition of a “social group”
is a flexible one, which encompasses a wide variety of groups
who do not otherwise fall within the other categories of race,
nationality, religion, or political opinion, it is also apparent
that the term cannot be without some outer limit, outside of
which tattooed youth surely falls. As a category, tattooed
youth do not share an innate characteristic, nor a past
experience, other than having received a tattoo. Furthermore,
the concept of a refugee simply cannot guarantee an
individual the right to have a tattoo. Tattooed youth is
overbroad and cannot be seen as constituting a collection of
people closely affiliated with each other, who share a
“common, immutable characteristic.” The BIA’s

-- 11 of 16 --

No. 02-3273 Castellano-Chacon v. INS 23
9The government suggests that Castellano could remove his tattoos
and we surely agree that if possible, this would dispose of the case.
However neither the IJ, nor the BIA, appear to base their decision o n this
fact, and there is no evidence in the record regarding C astellano ’s ability
to remove his tattoos. Castellano states in a footnote in his Reply Brief
that “[i]f respo ndent would consent to reopening the record with a new
hearing, undersigned counsel pro ffers to prove that after the Immigration
Judge’s hearing, respondent itself denied Castellano permission to attempt
tattoo removal at Meridia Southwest Hospital in Bedford Heights, Ohio.”
Although this information suggests that the tattoos are in fact removable,
it is unnecessary to come to this conc lusion in order to affirm the BIA ’s
decision in this case.
determination on this issue was not manifestly contrary to the
law.9
B. Is there sufficient evidence to compel a finding that
Castellano would be, more likely than not, persecuted as a
result of his membership in a particular social group?
Castellano has not presented evidence to support the
contention that he would be, more likely than not, persecuted
on the basis either of his membership in MS 13, or because of
his tattoos, since the evidence he produced at the hearing
focused on the persecution of children who were twenty-
three-years-old or younger, and Castellano is now twenty-
seven-years-old. In addition, he gave no information
regarding other similarly situated gang members who have
been deported and found themselves in danger.
Castellano argues that he has proven past persecution,
thereby entitling him to a presumption under 8 C.F.R.
§ 208.13(b)(1)(ii) of a well-founded fear of suffering future
persecution. If Castellano were applying for asylum, and he
had in fact proven past persecution, he would have made his
case and the burden would shift to the government to prove
that his fear of suffering future persecution was not well-
founded. See Mikhailevitch, 146 F.3d at 390. However,
Castellano’s application for asylum is time-barred and the
standard for an application for withholding, as mentioned
24 Castellano-Chacon v. INS No. 02-3273
already, is considerably higher. Thus, even if Castellano can
prove past persecution, his case is not made. Moreover,
Castellano’s evidence of threats does not rise to the level of
past persecution as defined by the INA and interpreted under
our case law.
Castellano’s evidence of past persecution consists of a
threat he received while in prison from another inmate who
was Honduran and who has since been deported to Honduras.
At the immigration hearing, Castellano testified as follows:
Q Have you received any specific threats?
A No, I haven’t received any, but - -
. . .
Q Did, did anybody - - when you were in jail in
Bedford Heights, did anybody tell you that they,
they could participate in that type of action?
A One of the boys that was there, yes, from Honduras
he said that they were going to deport him he saw
the news [sic]. They were destroying, they were
destroying all the gang members. He got, he got
upset. He said that when he got back he was going
to go and do the army to destroy them. He was in
the, in the military down there in Honduras and he
can get back in there easily. His name was Oscar
Masariego. He was detained there too.
Although Castellano’s Brief refers to this as a threat, it seems
that not even Castellano, when testifying to the event at his
hearing, viewed it as a threat. Castellano argues on appeal
that “vagueness is often used to imply violence,” but there is
no indication that Masariego considered Castellano to be
among the “gang members” that he was interested in
“destroying.” Furthermore, we held in Mikhailevitch, 146
F.3d at 390, that “persecution” within the meaning of the
INA, “requires more than a few isolated incidents of verbal
harassment or intimidation, unaccompanied by any physical
punishment, infliction of harm, or significant deprivation of

-- 12 of 16 --

No. 02-3273 Castellano-Chacon v. INS 25
liberty.” Whether or not Masariego’s comment was meant as
a threat, it does not rise to the level of “persecution” for
purposes of the INA. In addition, Castellano must
demonstrate more than the existence of a generalized or
random possibility of persecution in his native country on
account of the fact that he has tattoos, in order to succeed in
his application for withholding. See Singh v. INS, 134 F.3d
962, 967 (9th Cir. 1998) (holding that a petitioner “must show
that [he] is at particular risk – that [his] predicatment is
appreciably different from the dangers faced by [his] fellow
citizens” (quoting Kotasz v. INS, 31 F.3d 847, 852 (9th Cir.
1994))).
In sum, even if we view Castellano’s and Stewart’s
testimony as wholly credible, the evidence presented does not
compel a finding that Castellano would be subject to
persecution on account of his membership in a particular
social group. First, Castellano’s evidence only suggests that
young people with tattoos are targeted, and the group of
“tattooed youth” is not a social group for purposes of the
INA. Second, Castellano has not effectively demonstrated
that he is in fact a member of the group being targeted in
Honduras, in light of his age. We therefore affirm the BIA’s
denial of Castellano’s application for withholding of his
removal.
IV
Convention Against Torture
Castellano appeals the BIA’s denial of his request for
withholding of removal under Article 3 of the Convention
Against Torture. In fact, the Convention Against Torture
does not provide an independent basis for challenging
removal because its provisions are not self-executing, and
therefore not judicially enforceable law in the United States.
See Bannerman, 325 F.3d at 724 (citing Buell, 274 F.3d at
372, in which the court stated that a treaty is not judicially
enforceable law since it is not self executing, and “non-self-
26 Castellano-Chacon v. INS No. 02-3273
executing agreements will not be given effect as law in the
absence of necessary authority.” (quoting Restatement (Third)
of Foreign Relations Law § 111 (1987))). The United States
Senate, in consenting to ratify the Convention Against
Torture, attached a proviso that articles 1-16 are not self-
executing, see 136 Cong. Rec. S17486-01, S17492 (1990).
Congress then passed the Foreign Affairs Reform and
Restructuring Act (FARRA), which instructed appropriate
agencies to implement the obligations of the United States
under Article 3 of the Convention, see Pub. L. No. 105-277,
§ 2242(b), 112 Stat. 2681. The INS and the Executive Office
for Immigration Review, following the dictates of FARRA,
have since promulgated regulations implementing our
obligations under the Convention Against Torture, which
constitute the appropriate law under which Castellano’s claim
can be made.
8 C.F.R. § 208.16(c) articulates the conditions under which
an alien may be found eligible for the withholding of his or
her removal as a result of the probability of being subjected
to torture in the removal country. The regulation states in
relevant part that:
(4) In considering an application for withholding of
removal under the Convention Against Torture, the
immigration judge shall first determine whether the alien
is more likely than not to be tortured in the country of
removal. If the immigration judge determines that the
alien is more likely than not to be tortured in the country
of removal, the alien is entitled to protection under the
Convention Against Torture. Protection under the
Convention Against Torture will be granted either in the
form of withholding of removal or in the form of deferral
of removal.
8 C.F.R. § 208.16(c)(4).
Perhaps the most important difference between an
application for withholding of removal pursuant to section

-- 13 of 16 --

No. 02-3273 Castellano-Chacon v. INS 27
241(b)(3) of the INA, and making a claim under the
legislation implementing the Convention Against Torture, is
that in order to succeed pursuant to the Convention Against
Torture, it is not necessary to link the harm faced with any of
the five protected grounds enumerated in relation to
applications for asylum and withholding: race, religion,
nationality, membership in a particular social group, or
political opinion. Instead, 8 C.F.R. § 208.16(c)(4) focuses on
the particularized threat of torture, rather than any other form
of persecution, should the alien return to the country at issue,
although the torture must be inflicted, instigated, consented
to, or acquiesced in, by state actors. It is therefore possible
for Castellano to succeed in his claim pursuant to the
Convention Against Torture, even though we have held that
he is not part of a particular social group being targeted.
This court applies the same standard of review when
dealing with claims under 8 C.F.R. § 208(c) pursuant to the
Convention Against Torture as it does when reviewing claims
under 8 U.S.C. § 1231(b)(3). They are both decisions on
whether an alien’s removal must be withheld and are subject
to 8 U.S.C. § 1252(b)(4). We are, therefore, to uphold the
BIA’s determination against withholding the removal of an
alien, unless it is “manifestly contrary to the law.” Ali v.
Reno, 237 F.3d 591, 596 (6th Cir. 2001) (citing 8 U.S.C.
§ 1252(b)(4)(B)and (C)). And all administrative findings of
fact are “conclusive unless any reasonable adjudicator would
be compelled to conclude to the contrary.” Ibid.
The burden of proof is on Castellano to establish that he
would, more likely than not, be tortured if removed to
Honduras. 8 C.F.R. § 208.16(c)(3). Castellano claims that he
has succeeded in making this case through his own testimony,
the reports he offered, and Professor Stewart’s testimony.
The government disagrees, arguing that since Professor
Stewart did not know how many people were returned to
Honduras during 2000-01, nor the number of those people
who had tattoos similar to the petitioner’s, no evidence was
presented to support the argument that he would, more likely
28 Castellano-Chacon v. INS No. 02-3273
than not, be tortured. Presumably, the government would also
argue that Castellano lacked figures on the number of those
deported with similar tattoos who had been tortured, but the
point is well taken. Castellano attempted to make his case by
showing that a person in Honduras with tattoos is, more likely
than not, tortured by the government. If Castellano had
presented specific evidence in support of the contention that
the majority of persons similarly situated in terms of gang
status or tattoos were subject to torture, he might have made
his case. However, Castellano’s evidence described the
targeting of young gang members, generally twenty-three-
years-old or younger, who are not similarly situated since
Castellano is now twenty-seven-years-old. Furthermore,
Castellano did not present specific evidence as to the
likelihood of torture under these circumstances. Castellano
did not, therefore, succeed in demonstrating that it was more
likely than not that he would be tortured upon returning to
Honduras.
V
Due Process
According to Castellano, during the immigration hearing
the IJ “announced his desire to complete the hearing
expeditiously, and accordingly [did] not permit [his] counsel
to make opening statements nor closing arguments.” This
information does not appear in the transcript from the hearing,
but Castellano alleges that this occurred where the transcript
reads “off the record.” Castellano claims that by barring his
counsel from presenting an opening statement and a closing
argument, the IJ effectively denied him a fair hearing and
violated his due process rights. Presumably Castellano would
argue that this violation requires us to vacate the BIA’s
decision and remand his case for a new hearing.
This court reviews de novo an alleged due-process violation
based on the manner in which an IJ conducts a deportation
hearing, Mikhailevitch, 146 F.3d at 391, for although there is

-- 14 of 16 --

No. 02-3273 Castellano-Chacon v. INS 29
no constitutional right to asylum, aliens facing removal are
entitled to due process. See Zadvydas v. Davis, 533 U.S. 678,
693-94 (2001). Such due process requires that Castellano be
afforded a full and fair hearing, although the IJ is entitled to
broad discretion in conducting that hearing. Mikhailevitch,
146 F.3d at 391.
Castellano cites a number of cases that discuss the
importance of opening and closing arguments in criminal
trials. See Herring v. New York, 422 U.S. 853 (1975)
(holding that a New York statute conferring upon judges in
nonjury criminal trials the power to deny counsel any
opportunity to make summation of the evidence before the
rendition of judgment, was unconstitutional as applied to
defendant, since it denied the defendant the constitutional
right to assistance of counsel); United States v. Stanfield, 521
F.2d 1192 (9th Cir. 1975) (holding that the trial court’s
decision to give an opening statement to the jury instead of
permitting each side to make an opening statement, required
reversal, since it created prejudice by obscuring the correct
standard for jury consideration of evidence in a criminal
case); United States v. Hershenow, 680 F.2d 847 (1st Cir.
1982) (holding that the trial court erred in refusing to allow
the defendant in a criminal case to make opening statements
to the jury; however, since there was no prejudice, the error
was harmless).
There is no question that opening and closing arguments
are critically important in sharpening and clarifying issues for
resolution in our adversary system. Although they may be of
greater importance where a jury is involved, they still serve a
purpose in a bench trial and, given no other excuse than
general expediency, we agree with Castellano that the IJ in
this case did in fact err. While we recognize the practical
pressures that come to bear on our administrative courts
dealing with immigration issues, we also wish to encourage
the greatest respect for petitioners who appear before them
and to ensure that every opportunity for a full and fair hearing
is afforded to them. Instead of entirely denying Castellano’s
30 Castellano-Chacon v. INS No. 02-3273
counsel the opportunity to make opening and closing
statements, the IJ might have exercised his broad discretion
in controlling the duration and scope of those arguments,
thereby serving both the interests of due process and
expediency. Nevertheless, since Castellano failed to identify
any specific prejudice resulting from the IJ’s denial, we hold
the error to be harmless in this case.
Castellano contends that barring his counsel’s opening and
closing arguments prejudiced his trial in that neither
Castellano nor his counsel had “an opportunity to present his
case in a concise narrative form,” nor an opportunity “to
argue the law,” and “Castellano never had a chance to hear his
chosen advocate plea [sic] for his life, human-to-human.”
Castellano’s Reply Brief at 15. However, these are general
statements that fail to identify any specific prejudice resulting
from the IJ’s procedure.
VI
Corrections to the Record
Castellano argues on appeal that the BIA erred in failing to
correct errors in the record, pointed out by Castellano in a
motion to correct the transcript. Despite the fact that the
corrections were not disputed by the Attorney General, the
BIA ruled on the merits of the appeal, without ruling on the
motion to correct the transcript. Castellano cites no law in
support of his contention that the BIA is in error, and does not
state the legal basis for our jurisdiction to review this
question. Furthermore, Castellano does not identify any
prejudice resulting from these omissions and corrections to
the transcript.
Presumably we have jurisdiction to review the BIA’s ruling
on this motion to correct the transcript under 8 U.S.C.
§ 1252(b)(9), which deals with the consolidation of questions
for judicial review, when reviewing a final order of removal.
However, in this case the BIA has not yet ruled on

-- 15 of 16 --

No. 02-3273 Castellano-Chacon v. INS 31
Castellano’s motion and there is no indication in the record as
to whether they will in the future, so that the time for review
may not yet be ripe. Moreover, even if we have jurisdiction
and the issue is ripe, given the fact that the corrections are
mostly typographical, and the only substantive correction to
be made is the addition of the IJ’s ruling that barred
Castellano’s counsel from making opening and closing
arguments, there does not appear to be any prejudice resulting
from the BIA’s lack of decision on the motion to correct the
transcript, rendering any error harmless.
VII
For the foregoing reasons, we AFFIRM the BIA’s ruling,
which denied Castellano’s application for asylum, for
withholding of removal, and his claim pursuant to the
legislation implementing the Convention Against Torture.
32 Castellano-Chacon v. INS No. 02-3273
_____________
DISSENT
_____________
DAVID D. DOWD, JR., District Judge, dissenting in part.
I have no dispute with most of the majority’s opinion.
However, I must, respectfully, dissent from the decision to the
extent it holds to be harmless the denial of an opportunity to
make a closing argument. Although such error might be
harmless with respect to an opening statement, in my view,
where counsel requests a closing argument, due process, even
in the context of INS proceedings, requires that the request be
granted and failure to do so is so prejudicial that it should be
considered prejudice per se. I would remand this case for
review by a different immigration judge.

-- 16 of 16 --