734 F.3d 66
1st Cir.2013Background
- Muyubisnay-Cungachi is a native of Ecuador who entered the U.S. illegally in 2001 and was placed in removal proceedings in 2008.
- He sought withholding of removal and CAT protection, claiming fear of persecution as a member of an indigenous ethnic group with limited economic prospects in Ecuador.
- An IJ denied relief, and the BIA affirmed in 2012.
- He filed a First Motion to Reopen in May 2012 alleging worsened country conditions and family threats from a private actor; the BIA denied in July 2012.
- He filed a Second Motion to Reopen in August 2012 based on ineffective assistance of counsel and country-conditions theory; the BIA denied on October 10, 2012.
- The First and Second Motions to Reopen were reviewed for abuse of discretion, and the petition was denied on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Persecution on account of a protected ground | Muyubisnay argues threats were state- or ground-based. | BIA found threats not on account of a protected ground. | No persecution on protected ground; merits fail. |
| State-sponsored persecution via policy discrimination | Ecuador’s discrimination supports state-backed persecution. | No showing of systematic state policy; isolated discrimination not enough. | Insufficient showing of state-sponsored persecution. |
| Effectiveness of counsel and likelihood of prejudice | Expert testimony would show state-backed discrimination; counsel ineffective. | Expert affidavit insufficient to show prejudice; no ineffective assistance. | No ineffective assistance; no reasonable probability of different outcome. |
| Timeliness/number limits for motions to reopen and tolling | Equitable tolling should apply for ineffective assistance. | Procedural limits apply; tolling not shown. | Court does not resolve tolling issue on the merits; claims fail on substantive grounds. |
Key Cases Cited
- Ngengwe v. Mukasey, 543 F.3d 1029 (8th Cir. 2008) (applies same reasoning to private-persecution claims based on protected ground)
- Javed v. Holder, 715 F.3d 391 (1st Cir. 2013) (private threats must be on account of a protected ground to support persecution)
- Lumanauw v. Mukasey, 510 F.3d 75 (1st Cir. 2007) (custody-dispute threats not persecution absent religious or other protected ground connection)
- Lozada v. I.N.S., 857 F.2d 10 (1st Cir. 1988) (no constitutional right to counsel in deportation; due process concerns may arise)