Segundo N. MUYUBISNAY-CUNGACHI, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
No. 12-2353.
United States Court of Appeals, First Circuit.
Oct. 25, 2013.
734 F.3d 66
We have jurisdiction to review the petitioner‘s allegation of abuse of discretion with respect to the denial of a continuance, notwithstanding the jurisdictional bar contained in
Under the applicable regulation,
In an attempt to fashion a fallback position, the petitioner asserts that the denied continuance deprived him of a fair hearing and, thus, transgressed his right to due process. We have jurisdiction to review this constitutional claim. See
Here, the petitioner received all of the process that was due. We already have established that the IJ did not abuse her discretion in denying the request for continuance. See text supra. That being so, there is no basis for a colorable claim that the denied continuance somehow produced a fundamentally unfair hearing.6 See Alsamhouri, 484 F.3d at 124.
III. CONCLUSION
We need go no further. For the reasons elucidated above, we deny the petition for review.
So Ordered.
Keith I. McManus, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Stuart F. Delery, Acting Assistant Attorney General, Civil Division, and Song E. Park, Senior Litigation Counsel, Office of Immigration Litigation, on brief for respondent.
Before LYNCH, Chief Judge, TORRUELLA, Circuit Judge, and STEARNS,* District Judge.
STEARNS, District Judge.
Petitioner Segundo Muyubisnay-Cungachi seeks review of a decision of the Board of Immigration Appeals (BIA) denying a motion to reconsider his motion to reopen based on changed country circumstances. He also appeals the denial of a second motion to reopen based on a claim of ineffective assistance of counsel. Because we agree with the BIA that Muyubisnay-Cungachi has failed to establish a statutorily protected ground of persecution or to demonstrate ineffective assistance of counsel, we deny his petition.
I. Facts and Background
Segundo Muyubisnay-Cungachi (Muyubisnay) is a native and citizen of Ecuador who entered the United States illegally in 2001. Muyubisnay came to the attention of the Department of Homeland Security (DHS) after a routine traffic stop in November of 2008. On November 26, 2008, DHS instituted removal proceedings against him pursuant to
Muyubisnay conceded his removability, but applied for withholding of removal and for protection under the Convention Against Torture (CAT). Muyubisnay
On May 4, 2012, Muyubisnay filed a motion to reopen (First Motion to Reopen), claiming that his family circumstances and country conditions in Ecuador had worsened since his 2010 hearing before the IJ, compounding his fear of persecution. Muyubisnay related that his parents had become embroiled in a custody dispute with his brother-in-law, Luis Rogerio Lala Huillca (Huillca), who had recently been released from jail and was now issuing death threats against his family. Muyubisnay claimed that the Ecuadorian police, because of his family‘s indigenous ethnicity, refused to protect them from Huillca. On July 25, 2012, the BIA denied the motion. In sum, the BIA held that an ultimatum from a private individual arising from a child custody dispute did not constitute official persecution under the INA.
On August 24, 2012, Muyubisnay filed a motion requesting that the BIA reconsider its decision rejecting his claim of persecution. Muyubisnay argued that the BIA‘s characterization of his family‘s risk of harm as hinging solely on a “child custody dispute” minimized the extent to which the tenability of Huillca‘s threats was augmented by Ecuador‘s official policy of discrimination.
Through newly retained counsel, Muyubisnay also moved to reopen based on the alleged ineffective assistance of his prior counsel (Second Motion to Reopen). Muyubisnay claimed that prior counsel had denied him a fair opportunity to be heard by failing to produce expert testimony on the subject of discrimination by Ecuadorian authorities against indigenous peoples. In support, Muyubisnay submitted an affidavit from Lynn A. Meisch, professor of anthropology at Saint Mary‘s College of California, attesting that Huillca‘s unconstrained threats could legitimately be viewed as “a form of state-backed persecution of [Petitioner‘s] family.”
On October 10, 2012, the BIA denied both motions. With respect to the motion to reconsider, the BIA stated that it had never construed Muyubisnay‘s persecution claim as based “solely” on a custody dispute, but iterated that any danger posed by Huillca was personally motivated and had nothing to do with a purported official policy of discrimination. The BIA noted that the Second Motion to Reopen was vulnerable as number-barred, but proceeded to entertain it as resting on an implicit argument that country conditions in Ecuador had changed. This argument the BIA rejected because Muyubisnay‘s expert‘s supporting affidavit relied on facts in existence at the time of Muyubisnay‘s first hearing in 2010. Reaching the merits of Muyubisnay‘s ineffective assistance claim, the BIA found that Muyubisnay‘s prior counsel had adequately documented ethnic frictions in Ecuador during the original hearing. Finally, the BIA noted that Muyubisnay‘s new or renewed arguments did not remedy his seminal failure to articulate a fear of persecution based on a statutorily protected ground.
Muyubisnay now timely appeals.
We review both the BIA‘s denial of a motion to reopen and its denial of a motion to reconsider for abuse of discretion. See Larngar v. Holder, 562 F.3d 71, 74 (1st Cir.2009); Asemota v. Gonzales, 420 F.3d 32, 34 (1st Cir.2005). We will affirm the BIA‘s decision unless a petitioner shows that the BIA committed an error of law or “exercised its judgment in an arbitrary, capricious, or irrational way.” Raza v. Gonzales, 484 F.3d 125, 127 (1st Cir.2007).
III. Motion to Reconsider
“A motion to reconsider shall state the reasons for the motion by specifying the errors of fact or law in the prior Board decision....”
To qualify for withholding of removal under the INA, an applicant must “establish that his or her life or freedom would be threatened in the proposed country of removal on account of race, religion, nationality, membership in a particular social group, or political opinion.”
To support withholding of removal, persecution by a private party whom a government refuses or fails to control must arise “on account of” one of the five statutorily enumerated grounds. See Ortiz-Araniba v. Keisler, 505 F.3d 39, 41 (1st Cir.2007) (“[A] petitioner must demonstrate ... a well-founded fear of future persecution on account of her race, religion, nationality, political opinion, or membership in a particular social group.” (emphasis added)). For example, in Javed v. Holder, we found that an erroneous determination that a private party‘s death threats did not rise to the level of persecution “would be harmless if [the BIA] were correct that the persecution ... experienced was not ‘on account of a protected ground.” 715 F.3d 391, 396 (1st Cir.2013); see also Baghdasaryan v. Holder, 592 F.3d 1018, 1023 (9th Cir.2010) (“An applicant alleging past persecution has the burden of establishing that ... the persecution was on account of one or more protected grounds; and ... the persecution was committed by ... forces that the government was unable or unwilling to control.“); Fiadjoe v. Attorney Gen. of U.S., 411 F.3d 135, 160 (3d Cir.2005) (“To establish persecution, an alien must show past or potential harm rising to the level of persecution on account of a statutorily enumerated ground that is committed ... by forces the government is unable or unwilling to con-
The BIA correctly found that Muyubisnay had failed to establish that Huillca‘s threats against his family arose “on the basis of” a protected ground. Even if it is true (as the BIA appears to have assumed) that the Ecuadorian police had refused to protect Muyubisnay‘s family from Huillca because of the family‘s indigenous ethnicity, this is not enough. Muyubisnay must also show that the violence threatened by Huillca itself originated “on account of” a protected characteristic. See Javed, 715 F.3d at 396. The undisputed evidence instead easily supports the BIA‘s conclusion that Huillca‘s threats were motivated by an acrimonious intra-family custody battle that had nothing to do with the family‘s indigenous status. See Lumanauw v. Mukasey, 510 F.3d 75, 77 (1st Cir.2007) (finding that death threats issued during a custody battle could not constitute persecution absent any evidence “that petitioner‘s ex-fiancé‘s actions were motivated to any extent by petitioner‘s Christian beliefs“). Persecution by a family member resulting from an intra-family conflict is not persecution on account of a “particular social group” within the meaning of
Alternately, Muyubisnay argues that Ecuador‘s systematic exclusion of indigenous communities from police protection amounts to state-sponsored “encouragement” of persecution. But to establish that the government of Ecuador‘s alleged encouragement of ethnic strife constitutes persecution under the INA, Muyubisnay
would need show a pattern of state-sponsored violence that is so widespread that any member of an indigenous group would “more likely than not” face persecution on that ground.
IV. Second Motion to Reopen
Muyubisnay next challenges the BIA‘s denial of his Second Motion to Reopen based on ineffective assistance of counsel.2
As a general rule, motions to reopen removal hearings are disfavored as contrary to “the compelling public interests in finality and the expeditious processing of proceedings.” Raza, 484 F.3d at 127 (quoting Roberts v. Gonzales, 422 F.3d 33, 35 (1st Cir.2005)). Accordingly, the INA places strict temporal and numerical limitations on a petitioner‘s ability to file a motion to reopen. A petitioner may normally file only one such motion within ninety days of the final administrative decision. See
“Because deportation proceedings are deemed to be civil, rather than criminal, in nature, petitioners have no constitutional right to counsel under the Sixth Amendment.” Lozada v. I.N.S., 857 F.2d 10, 13 (1st Cir.1988). Notwithstanding, the Supreme Court has recognized that “the Fifth Amendment entitles aliens to due process of law in deportation proceedings.” Reno v. Flores, 507 U.S. 292, 306, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993); see also Saakian v. I.N.S., 252 F.3d 21, 24 (1st Cir.2001). Ineffective assistance of counsel may violate a petitioner‘s right to due process where counsel‘s deficiencies render “the proceeding ... so fundamentally unfair that the alien [is] prevented from reasonably presenting his case.” Bernal-Vallejo v. I.N.S., 195 F.3d 56, 63 (1st Cir.1999); see also Guerrero-Santana, 499 F.3d at 93. A petitioner bringing an ineffective assistance claim must establish both a deficient performance by counsel and “a reasonable probability of prejudice resulting from [his] former representation.” Zeru v. Gonzales, 503 F.3d 59, 72 (1st Cir.2007) (internal quotation marks omitted).
Muyubisnay has failed to show that expert testimony regarding discrimination against indigenous peoples in Ecuador would have had a reasonable probability of altering the outcome of either his initial application for withholding or his First Motion to Reopen. While Muyubisnay claims that an expert witness would have “provided substantive corroboration” of discriminatory conditions in Ecuador, the BIA did not discount Muyubisnay‘s argument that his family was being denied police protection. The expert‘s proffered assertion that Huillca‘s threats are “a form of state-backed persecution of [Petitioner‘s] family because of their indigenous background” is purely conclusory in content, and fails utterly to explain the connection between Huillca‘s personal venom and any official persecution “on the basis of” a protected ground. Because Muyubisnay did not carry his burden of demonstrating ineffective assistance of counsel, the BIA did not abuse its discretion in denying his Second Motion to Reopen.
V. Conclusion
The petition is DENIED.