Rodrigo Ramos-Braga v. Jefferson B. Sessions III
900 F.3d 871
| 7th Cir. | 2018Background
- Ramos-Braga, a Brazilian national, suffered repeated PCC gang recruitment attempts, assaults, and police violence in São Paulo beginning in his teens; he entered the U.S. in 1999 and later became removable for overstaying his visa and for criminal convictions.
- At his removal hearing he testified about PCC and police violence; the IJ found him credible but denied special-rule cancellation, statutory withholding, and CAT relief. Key disqualifiers included crimes of moral turpitude and more than five years’ confinement.
- The BIA affirmed in 2014. Ramos-Braga pursued multiple pro se filings and two motions to reopen to the BIA (the second filed Aug. 31, 2015), asserting ineffective assistance of counsel (equitable tolling) and changed country conditions in Brazil.
- The BIA denied the second motion as untimely and numerically barred, concluding Ramos-Braga showed neither prejudice from counsel’s alleged failings nor new, material changed conditions in Brazil.
- Ramos-Braga petitioned for review in the Seventh Circuit. The court considered only whether the BIA abused its discretion in denying equitable tolling and the changed-conditions exception and denied the petition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether equitable tolling excuses time/numeric bars for second motion to reopen | Former counsel failed to appeal meritorious claims (special-rule cancellation; CAT), so equitable tolling should apply | BIA: No prejudice and Ramos-Braga did not act promptly after discovering counsel’s errors | Denied — no prejudice shown; equitable tolling unavailable |
| Whether counsel’s failure to appeal special-rule cancellation prejudiced Ramos-Braga | Counsel should have challenged moral turpitude finding so cancellation could be granted | BIA: Even without that argument, Ramos-Braga was disqualified for >5 years’ confinement under binding BIA interpretation | Denied — alternative statutory disqualification defeats prejudice claim |
| Whether counsel’s failure to appeal CAT claim prejudiced Ramos-Braga | Counsel should have argued government acquiescence to PCC torture based on past police abuse and recent PCC threats | BIA: Evidence does not compel finding of likely official acquiescence today; past abuse and reports are stale/insufficient | Denied — record does not compel official acquiescence; no prejudice |
| Whether changed country conditions (PCC growth/threats; police violence) excuse filing limits | New evidence (PCC threats, reward, recent attacks, news reports of police violence) shows material change warranting reopening for withholding/CAT | BIA: New evidence is continuation or immaterial to nexus; motive traces to 1997; reports do not show officials would specifically target/acquiesce to harm him | Denied — no new material evidence altering nexus or proving likely official acquiescence |
Key Cases Cited
- Mata v. Lynch, 135 S. Ct. 2150 (U.S. 2015) (time/numeric limits on motions to reopen are nonjurisdictional and may be subject to equitable tolling)
- Ji Cheng Ni v. Holder, 715 F.3d 620 (7th Cir. 2013) (treated limits as claim-processing rules; changed-conditions exception standard)
- Pervaiz v. Gonzales, 405 F.3d 488 (7th Cir. 2005) (standards for motions to reopen)
- Yusev v. Sessions, 851 F.3d 763 (7th Cir. 2017) (equitable tolling requires diligence and prejudice from counsel’s deficient performance)
- Lopez v. Lynch, 810 F.3d 484 (7th Cir. 2016) (CAT requires torture by government or government acquiescence)
- Orellana-Arias v. Sessions, 865 F.3d 476 (7th Cir. 2017) (review standard: reversal only if evidence compels contrary finding on acquiescence)
- Rodriguez-Molinero v. Lynch, 808 F.3d 1134 (7th Cir. 2015) (example of compelled finding of likely government acquiescence to cartel violence)
- Wanjiru v. Holder, 705 F.3d 258 (7th Cir. 2013) (remand where extensive evidence showed official complicity with gang violence)
- Mendoza-Sanchez v. 808 F.3d 1182 (7th Cir. 2015) (remand where evidence showed police routinely collaborated with gangs)
- Bernard v. Sessions, 881 F.3d 1042 (7th Cir. 2018) (country reports of generalized violence insufficient to show petitioner-specific risk of torture)