Pillco v. Sessions
16-4284
| 2d Cir. | Dec 20, 2017Background
- Petitioner Guillermo Teodoro Pillco, an Ecuadorian national, entered the U.S. without authorization in 2002 and was placed in removal proceedings in 2007.
- An IJ denied his asylum, withholding, and CAT claims in 2011 for lack of nexus to a protected ground and lack of likelihood of torture with government consent; BIA affirmed in 2013.
- In 2016 Pillco moved to reopen based on new threats from Enrique Saltos, who allegedly blamed Pillco for his conviction and threatened Pillco and his family to collect a debt.
- The BIA denied the motion as untimely (filed more than 90 days after the final BIA decision) and found no materially changed circumstances, no nexus to a protected ground, and no likelihood of torture with government consent.
- Pillco petitioned for review and moved for in forma pauperis (IFP) status, appointment of counsel, and a stay of removal; the Second Circuit considered whether the petition had any arguable basis in law or fact.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the BIA abused its discretion in denying motion to reopen as untimely or on merits | Pillco argued new, post‑removal threats by Saltos constituted materially changed circumstances justifying reopening and demonstrated fear of persecution/torture | Government argued the motion was untimely, Pillco failed to show materially changed country or personal conditions, and claims arise from private debt collection (no protected ground or State acquiescence) | BIA did not abuse discretion: motion untimely, no materially changed circumstances, no nexus to protected ground, and no showing of government consent/acquiescence to torture |
| Whether Pillco established entitlement to asylum/withholding based on Saltos’s threats | Pillco contended Saltos’s threats and attacks on family amount to persecution warranting relief | Government argued threats were private violence related to debt collection, not persecution on protected ground | Denied: private debt‑collection violence is not persecution on a protected ground; asylum/withholding fail |
| Whether Pillco established CAT protection (torture with govt consent/acquiescence) | Pillco argued local police were willfully blind and ineffective in protecting him from Saltos | Government pointed to evidence police investigated and prosecutor reviewed evidence, showing lack of State consent/acquiescence | Denied: record shows police response and prosecution steps contradict willful blindness; CAT claim fails |
| Whether petition for review is frivolous and IFP should be granted | Pillco sought IFP and review of BIA denial | Government opposed IFP and argued petition lacked merit | Petition dismissed as frivolous under 28 U.S.C. §1915(e)(2)(B)(i); IFP and other motions denied (or denied as moot) |
Key Cases Cited
- Neitzke v. Williams, 490 U.S. 319 (frivolousness standard for IFP dismissal)
- Ali v. Gonzales, 448 F.3d 515 (2d Cir.) (motions to reopen disfavored; abuse‑of‑discretion review)
- Li Yong Cao v. U.S. Dep’t of Justice, 421 F.3d 149 (2d Cir.) (heavy burden to show new evidence would alter result)
- Saleh v. U.S. Dep’t of Justice, 962 F.2d 234 (2d Cir.) (financially motivated violence not a protected social‑group persecution basis)
- Ramsameachire v. Ashcroft, 357 F.3d 169 (2d Cir.) (failure to establish asylum precludes withholding of removal)
- Khouzam v. Ashcroft, 361 F.3d 161 (2d Cir.) (CAT requires torture by or with consent/acquiescence of public official)
- Mills v. Fischer, 645 F.3d 176 (2d Cir.) (litigants barred from proceeding IFP are ineligible for its benefits)