Jhony Lopez-Garcia v. Jefferson Sessions
693 F. App'x 645
| 9th Cir. | 2017Background
- Lopez-Garcia, an El Salvador national and former gang affiliate, appealed denial of asylum, withholding of removal, and CAT relief; BIA dismissed and later denied his motion to reopen as untimely.
- Motion to reopen was filed well after the 90-day statutory deadline for reopening removal orders.
- Lopez-Garcia argued equitable tolling based on ineffective assistance of counsel, claiming counsel failed to pursue voluntary departure and timely motions.
- BIA found Lopez-Garcia did not satisfy Matter of Lozada requirements (e.g., he did not file a complaint with disciplinary authorities) and that counsel’s ineffectiveness was not plain on the record.
- On the merits, BIA concluded he failed to show eligibility for withholding of removal (no cognizable particular social group of former gang members; harm tied to his own gang ties, not family; government protection adequate in at least one instance) and failed to show CAT relief because torture with government consent or acquiescence was not established.
- Lopez-Garcia waived challenge to the BIA’s 2011 order by not raising it in his opening brief; alternatively the court would deny relief for failure to file asylum application within one year and lack of likelihood of persecution or torture.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of motion to reopen | Lopez-Garcia: equitable tolling for ineffective assistance excuses late filing | BIA: motion untimely; Lozada procedural requirements not met; no plain ineffective assistance | Denied — motion untimely; Lozada not satisfied; no prejudicial ineffective assistance shown |
| Adequacy of counsel (plain error) | Counsel plainly ineffective for not pursuing voluntary departure | Government: record does not show eligibility for voluntary departure; counsel error not plain | Denied — no plain error; eligibility for voluntary departure not established |
| Withholding of removal (particular social group / nexus) | Former gang members and family membership make him eligible; government unable/unwilling to protect | Government: former gang members not cognizable group; harm tied to his gang ties; government protected on at least one occasion | Denied — failed to show cognizable group or nexus; government protection shown; not more likely than not to be persecuted |
| CAT relief (government acquiescence) | Would face torture with government consent/acquiescence if returned | Government: record lacks evidence of torturous treatment with state acquiescence | Denied — no showing of torture with public official consent or acquiescence |
Key Cases Cited
- Reyes v. Ashcroft, 358 F.3d 592 (9th Cir. 2004) (standards on timeliness and motions to reopen)
- Bonilla v. Lynch, 840 F.3d 575 (9th Cir. 2016) (equitable tolling for ineffective assistance of counsel)
- Singh v. Holder, 658 F.3d 879 (9th Cir. 2011) (prejudice requirement for ineffective assistance claims)
- Reyes v. Lynch, 842 F.3d 1125 (9th Cir. 2016) (former gang members and particular social group analysis)
- Barajas-Romero v. Lynch, 846 F.3d 351 (9th Cir. 2017) (analysis of harm tied to family relationships vs. the alien’s own conduct)
- Reyes-Reyes v. Ashcroft, 384 F.3d 782 (9th Cir. 2004) (government unable/unwilling to control persecutors requirement)
- Feng Gui Lin v. Holder, 588 F.3d 981 (9th Cir. 2009) (BIA’s treatment of expert evidence)
- Shouchen Yang v. Lynch, 822 F.3d 504 (9th Cir. 2016) (credibility and persuasiveness standards)
- Rizk v. Holder, 629 F.3d 1083 (9th Cir. 2011) (waiver for issues not raised in opening brief)