946 F.3d 371
7th Cir.2019Background
- Elvira Garcia-Arce, a Mexican national removed in 2001, illegally reentered the U.S.; detained in 2018 after a DUI and reinstatement of the 2001 removal order.
- She applied for withholding of removal under the INA and protection under the Convention Against Torture (CAT), alleging past physical/sexual abuse by family and a gang member called "Tacos."
- The immigration judge found credibility problems (including a fake birth certificate and statements to border agents) but assumed past persecution; the judge concluded she could reasonably relocate within Mexico and found no evidence government acquiescence to torture.
- The Board affirmed the IJ in February 2019; Garcia-Arce then moved to reopen, alleging ineffective assistance by prior counsel (failure to press a mental-health–based claim, failure to properly advance a CAT claim about cartels/corrupt officials, and incorrect bond advice).
- The Board denied the motion to reopen in July 2019, finding counsel made reasonable tactical choices and Garcia-Arce failed to show prejudice; Garcia-Arce petitioned this Court on both orders.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Withholding under INA (past persecution / relocation) | Garcia-Arce: past abuse compels presumption of future persecution; relocation would be unreasonable. | Board/IJ: substantial evidence shows she safely lived four hours away and could relocate; credibility issues. | Denied — substantial evidence supports finding relocation reasonable; no compelled contrary conclusion. |
| Convention Against Torture (CAT) exhaustion and merits | Garcia-Arce: CAT relief based on cartels and corrupt officials; ineffective counsel prevented proper presentation. | Respondent: CAT claim unexhausted before the Board; even if reviewed, no substantial risk of torture nor government acquiescence shown; relocation relevant. | Denied — CAT claim unexhausted; on merits, no compelled showing of substantial risk or acquiescence. |
| Motion to reopen for ineffective assistance of counsel | Garcia-Arce: prior counsel failed to raise stronger theories (mental-health basis, CAT, bond eligibility), depriving her of a fair presentation. | Respondent/Board: counsel made strategic, reasonable choices after investigation; no prejudice shown that would have changed outcome. | Denied — Board did not abuse discretion; counsel’s tactical decisions were reasonable and prejudice was not established. |
Key Cases Cited
- Ruiz-Cabrera v. Holder, 748 F.3d 754 (7th Cir. 2014) (review where Board adopts IJ decision and adds reasoning)
- Khan v. Holder, 766 F.3d 689 (7th Cir. 2014) (substantial-evidence standard for agency factual findings)
- Rodriguez Galicia v. Gonzales, 422 F.3d 529 (7th Cir. 2005) (highly deferential review of immigration factual findings)
- Abdoulaye v. Holder, 721 F.3d 485 (7th Cir. 2013) (reversal only if evidence compels contrary conclusion)
- Tsegmed v. Sessions, 859 F.3d 480 (7th Cir. 2017) (clear-probability standard for future persecution)
- Duarte-Salagosa v. Holder, 775 F.3d 841 (7th Cir. 2014) (administrative exhaustion requirement for Board review)
- Minghai Tian v. Holder, 745 F.3d 822 (7th Cir. 2014) (purpose of exhaustion: allow Board to apply expertise and provide reasoning)
- Barry v. Barr, 916 F.3d 666 (7th Cir. 2019) (CAT requires showing of a substantial risk of torture)
- Habib v. Lynch, 787 F.3d 826 (7th Cir. 2015) (ineffective-assistance standard: proceeding must be so unfair petitioner was prevented from reasonably presenting case)
- Sanchez v. Sessions, 894 F.3d 858 (7th Cir. 2018) (prejudice requirement for ineffective-assistance showing)
- Sanchez v. Keisler, 505 F.3d 641 (7th Cir. 2007) (reversal where counsel abandoned a clearly stronger claim without justification)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (wide latitude for counsel’s tactical decisions)
- Villa Serrano v. Barr, [citation="784 F. App'x 455"] (7th Cir. 2019) (limits of judicial review over Board’s sua sponte reopening discretion)