Muyubisnay Cungachi v. Holder , 734 F.3d 66 ( 2013 )

United States Court of Appeals
For the First Circuit
No. 12-2353
SEGUNDO N. MUYUBISNAY-CUNGACHI,
Petitioner,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Torruella, Circuit Judge,
and Stearns,* District Judge.
Paul M. Glickman and Glickman Turley LLP on brief for
petitioner.
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.
October 25, 2013
*
Of the District of Massachusetts, sitting by designation.
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 8 U.S.C. § 1182(a)(6)(A)(i).
Muyubisnay conceded his removability, but applied for
withholding of removal and for protection under the Convention
Against Torture (CAT). Muyubisnay claimed that he was fearful of
returning to Ecuador because, as a member of an indigenous ethnic
group, he has severely limited economic opportunities in his native
country. The Immigration Judge (IJ), while finding that Muyubisnay
had shown instances of discrimination by Ecuadorian authorities
against indigenous peoples, nevertheless found that Muyubisnay's
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unfavorable financial prospects did not constitute "persecution"
within the meaning of the Immigration and Naturalization Act (INA).
She further found that Muyubisnay had submitted no credible
evidence that he faced torture as defined by the CAT if he returned
to Ecuador. On March 7, 2012, the BIA upheld the IJ's denial of
relief and protection.
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
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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,
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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.
II. Standard of Review
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 . . . ." 8 C.F.R. § 1003.2(b)(1); Ven v. Ashcroft, 386
F.3d 357, 360 (1st Cir. 2004). A party filing a motion to
reconsider "must present additional legal arguments, a change of
law, or an argument or aspect of the case that was overlooked."
Asemota, 420 F.3d at 33. "The purpose of a motion to reconsider is
not to raise new facts, but to demonstrate that the BIA erred as a
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matter of law or fact." Zhang v. I.N.S., 348 F.3d 289, 293 (1st
Cir. 2003).
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." 8 C.F.R. § 208.16(b); Pan v. Gonzales, 489
F.3d 80, 85-86 (1st Cir. 2007). Where an applicant has not
suffered past persecution, he or she must demonstrate "that it is
more likely than not" that he or she would face persecution upon
removal. 8 C.F.R. § 208.16(b)(2); Silva v. Ashcroft, 394 F.3d 1,
4 (1st Cir. 2005). A showing of persecution necessarily "implies
some connection to government action or inaction." Lopez-Castro v.
Holder, 577 F.3d 49, 54 (1st Cir. 2009) (quoting Nikijuluw v.
Gonzales, 427 F.3d 115, 120-21 (1st Cir. 2005)). However, conduct
by private parties can support a finding of persecution if "there
is some showing that the alleged persecutors are in league with the
government or are not controllable by the government." Silva, 394
F.3d at 7.
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
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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 control.").1
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
1
In Ngengwe v. Mukasey, the principal case cited by
Muyubisnay, the Eighth Circuit applied the same reasoning in
finding that a claim of persecution based on private conduct could
be sustained only if the private acts arose "on account of" a
statutorily enumerated ground. 543 F.3d 1029, 1035, 1037 (8th Cir.
2008).
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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
8 C.F.R. § 208.16(b), and therefore is not a ground for withholding
of removal.
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
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likely than not" face persecution on that ground. 8 C.F.R.
§ 208.16(b)(2). While the BIA agreed that Muyubisnay had shown
individual instances of discrimination against indigenous peoples
in Ecuador, it supportably found no showing of systematic
discrimination suggesting a state policy of deliberate persecution.
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 8 U.S.C.
§ 1229a(c)(7)(A); 8 U.S.C. § 1229a(c)(7)(C)(i); Tandayu v. Mukasey,
521 F.3d 97, 100 (1st Cir. 2008). The statute recognizes only one
formal exception to these procedural requirements: where the
petitioner demonstrates "changed circumstances arising in the
country of nationality." 8 U.S.C. § 1229a(c)(7)(C)(ii); Tandayu,
521 F.3d at 100.
2
While the BIA chose to construe Muyubisnay's Second Motion
to Reopen as incorporating an argument based on changed country
conditions, Muyubisnay does not pursue the argument on appeal.
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This court has thus far declined to resolve whether the
INA's procedural limitations are further subject to equitable
tolling for exceptional circumstances such as ineffective
assistance of counsel. See, e.g., Guerrero-Santana v. Gonzales,
499 F.3d 90, 93 (1st Cir. 2007) ("This court has not yet decided
whether the BIA has either the authority or the obligation to
excuse the late filings on the basis of equitable tolling."); Neves
v. Holder, 613 F.3d 30, 36 (1st Cir. 2010) (assuming "arguendo . .
. that the time and number limits on motions to reopen are subject
to equitable tolling"). Nor does this case require us to reach the
issue, because, simply on the merits, Muyubisnay has failed to
satisfy the legal standard for a showing of ineffective assistance
of counsel.
"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 (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."
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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.
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