Ortiz-Puentes v. Holder
662 F.3d 481
| 8th Cir. | 2011Background
- Three Guatemalan siblings (Malaquias, Juan, Mari Consuelo Ortiz-Puentes) entered the United States in December 2004 and faced removal proceedings.
- They sought asylum and withholding of removal based on past persecution and fear of future persecution by criminal gangs.
- IJ denied asylum; BIA dismissed on the merits; later, BIA denied motion to reconsider and to reopen based on ineffective assistance of counsel.
- Petitioners alleged the gangs persecuted them for political opinion and/or because of a particular social group (young Guatemalans who refuse to join gangs).
- BIA held the group lacked visibility/particularity to constitute a social group; Petitioners did not prove persecution tied to a protected ground.
- Court upholds BIA denial; petitions for review are denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether petitioners qualify for asylum as a social group or on political grounds | Ortiz-Puentes argue they were targeted for not joining gangs and for political relevance. | Holder argues group lacks social group status and persecution not tied to protected ground. | Denied; no protected-ground basis; not a cognizable social group. |
| Whether petitioners meet withholding of removal standard | Persecution by gangs constitutes persecution on account of a protected ground. | Gangs’ violence not shown to be on account of a protected ground; insufficient nexus. | Denied; burden not satisfied beyond asylum standard. |
| Whether BIA properly denied petitioners’ motion to reopen based on ineffective-assistance of counsel | Petty’s deficiencies prejudiced outcome by harming relief possibilities. | BIA properly evaluated Lozada framework and found no prejudice; claims speculative in some aspects. | Denied; no abuse of discretion; prejudice not shown. |
| Whether Lozada framework was correctly applied to counsel-ineffectiveness claims | Lozada standard requires remedy when counsel’s performance prejudiced proceedings. | BIA’s Lozada-based analysis was sound and adequately addressed prejudice. | Denied; BIA did not err in applying Lozada. |
| Whether any other asserted deficiencies in counsel’s performance warrant reopening | Failure to file briefs, call Mari, or raise arguments prejudiced case. | BIA properly weighed evidence; failures did not demonstrate prejudice or material error. | Denied; no prejudice shown; reopening properly denied. |
Key Cases Cited
- Constanza v. Holder, 647 F.3d 749 (8th Cir.2011) (social group requires visibility and particularity)
- Elias-Zacarias v. INS, 502 U.S. 478 (Supreme Court 1991) (nexus requirement for persecution on protected grounds)
- Marroquin-Ochoma v. Holder, 574 F.3d 574 (8th Cir.2009) (substantiation of asylum withholding nexus standard)
- Kucana v. Holder, 130 S. Ct. 827 (2010) (abuse-of-discretion review for reopening)
- Ochoa v. Holder, 604 F.3d 546 (8th Cir.2010) ( Lozada framework applied to ineffective-assistance claims)