890 F.3d 686
7th Cir.2018Background
- Ramos-Braga, a Brazilian national, suffered repeated gang (PCC) recruitment, assaults, and police beatings in São Paulo beginning in his teens; he entered the U.S. in 1999 and later married a U.S. citizen.
- DHS charged him with removability for overstaying his visa and later for criminal convictions; an IJ found him credible but denied special‑rule cancellation, statutory withholding, and CAT relief and ordered removal.
- The IJ disqualified him from special‑rule cancellation based on convictions and cumulative confinement exceeding statutory limits; the IJ found past persecution by PCC but insufficient nexus to a protected social group and insufficient evidence of governmental acquiescence for CAT.
- Ramos‑Braga appealed, changed counsel (fee dispute), filed multiple untimely and successive motions to reopen before the BIA asserting ineffective assistance of counsel (equitable tolling) and changed country conditions in Brazil.
- The BIA denied his second motion to reopen as numerically barred and untimely, concluding he failed to show prejudice from counsel’s alleged errors and failed to present new, material evidence of changed conditions supporting CAT or statutory withholding.
- The Seventh Circuit reviewed the BIA’s denial for abuse of discretion and denied Ramos‑Braga’s petition for review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether equitable tolling excuses numerosity/time limits for second motion to reopen based on ineffective assistance of counsel | Former counsel failed to appeal meritorious claims (special‑rule cancellation; CAT), so tolling should apply | BIA: No prejudice shown from counsel’s omissions; Ramos‑Braga did not pursue relief as soon as reasonably possible | Denied — no equitable tolling: petitioner not prejudiced by counsel’s omissions |
| Whether petitioner was prejudiced on special‑rule cancellation claim by counsel’s failure to appeal | Counsel should have challenged moral‑turpitude classification of battery conviction | DHS/BIA: Even if moral turpitude issue meritorious, statutory bar of >5 years’ confinement still disqualifies him | Denied — prejudice not shown because alternative statutory disqualification remains |
| Whether petitioner was prejudiced on CAT claim by counsel’s failure to appeal | Counsel should have argued IJ ignored evidence that PCC would torture him with official acquiescence | DHS/BIA: Record evidence does not compel conclusion of governmental acquiescence; recent incidents are insufficient | Denied — evidence does not compel finding of state acquiescence; no prejudice shown |
| Whether changed country conditions in Brazil excuse time/numeric limits for reopening (for withholding/CAT) | PCC threat and recent threats/attacks against family, reward offers, and reports of police violence constitute new, material changed conditions | DHS/BIA: Most asserted facts predate hearing or do not show nexus to protected group or state acquiescence; new evidence is not material to the IJ’s original bases for denial | Denied — petitioner failed to show new, material evidence of changed conditions that would alter the result |
Key Cases Cited
- Rodriguez‑Molinero v. Lynch, 808 F.3d 1134 (7th Cir.) (evidence required to show government acquiescence to private actor torture)
- Lopez v. Lynch, 810 F.3d 484 (7th Cir.) (defining acquiescence standard for CAT claims)
- Orellana‑Arias v. Sessions, 865 F.3d 476 (7th Cir.) (review standard: reverse only if evidence compels contrary conclusion)
- Wanjiru v. Holder, 705 F.3d 258 (7th Cir.) (remand where IJ ignored extensive evidence of official complicity with gang)
- Mendoza‑Sanchez, 808 F.3d 1182 (7th Cir.) (remand/strong CAT claim where police routinely collaborated with gangs)
- Bernard v. Sessions, 881 F.3d 1042 (7th Cir.) (country reports of violence insufficient absent evidence petitioner would be specifically targeted)
- Lozano‑Zuniga v. Lynch, 832 F.3d 822 (7th Cir.) (generalized fear of violence in an area insufficient for individualized risk)
- Rashiah v. Ashcroft, 388 F.3d 1126 (7th Cir.) (CAT requires evidence that petitioner will be specifically targeted)
- Arevalo v. U.S. Att’y Gen., 872 F.3d 1184 (11th Cir.) (deference to BIA interpretation of waiver provisions for cancellation)
- Garcia‑Mendez v. Lynch, 788 F.3d 1058 (9th Cir.) (same)