Muriel Velasquez v. Ashcroft , 105 F. App'x 287 ( 2004 )

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 03-1689
ELKIN EDISSON MURIEL VELASQUEZ; OLGA LUCIA VALENCIA QUINCENO,
JULIAN E. MURIEL VALENCIA; MELISA MURIEL VALENCIA, and
VANESSA MURIEL VALENCIA,
Petitioners,
v.
JOHN ASHCROFT, ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW FROM AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Boudin, Chief Judge,
Campbell, Senior Circuit Judge,
and Lynch, Circuit Judge.
Walter J. Gleason on brief for petitioner.
Anthony C. Payne, Attorney, Office of Immigration Litigation,
Civil Division, United States Justice Department, Peter D. Keisler,
Assistant Attorney General, Civil Division, and David V. Bernal,
Assistant Director, on brief for respondent.
August 10, 2004
CAMPBELL, Senior Circuit Judge. This is petition for
review of an order of the Board of Immigration Appeals ("Board"),
brought by members of the same family, seeking to overturn orders
for their removal from the United States to their home country of
Colombia. We affirm the order of the Board.
As the Immigration and Naturalization Service ("INS") has
determined, the "lead file" is that of Elkin Edisson Muriel
Velasquez; the other appellants are all members of his family, and
their claims for asylum, withholding of removal, and protection
under the Convention Against Torture, rise or fall on the merits of
Velasquez's like claims. We accordingly focus on the facts and
merits of Velasquez's case, these being determinative of the
others' as well.
Velasquez was most recently admitted to the United States
on July 9, 1996 on a nonimmigrant business visa. His visa expired,
but he nonetheless remained in this country. On December 22, 1999,
the INS commenced removal proceedings against him by issuing a
Notice to Appear charging Velasquez with removability pursuant to
8 U.S.C. § 1227(a)(1)(B) as an alien who remained in the United
States for a time longer than permitted. On August 18, 1999, James
C. Dragon, an attorney, prepared and filed with the INS an
application on behalf of Velasquez for asylum, withholding of
removal, and protection under the Convention Against Torture.
Represented by Dragon, Velasquez appeared on March 7, 2000 before
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an Immigration Judge ("IJ"), conceded removability, and entered his
asylum application and supporting documents. On May 4, 2000, at a
hearing before an IJ, Velasquez testified to the following effect.
Velasquez owned a store in Itagui, Colombia between 1994
and December of 1996. During that time, he visited the United
States on numerous occasions on visitor's visas. In December of
1995, members of an organization known as Populares Milicias
physically assaulted him and requested that he pay to them a "war
tax" so that he could receive protection from theft or further
violence. He paid the war tax several times, the payments totaling
8 million pesos. At one point, he was unable to pay the war tax,
and he thereafter suffered another physical assault and a store
robbery. He reported the incidents to the police, who installed an
internal alarm to curb further robberies. After its installation,
Velasquez suffered no further physical assaults or robberies.
Nevertheless, he feared the Populares Milicias and decided in April
of 1996 that he wanted to stay in the United States indefinitely
until conditions improved in Colombia. He returned to the United
States in July of 1996 and remained beyond the amount of time
permitted in his visa. In "the middle of 1998" friends and family
members called Velasquez stating that people, presumably members of
Populares Milicias, were asking about his whereabouts. By December
of 1998, he had given up hope of ever returning safely to Colombia,
so he decided to seek information regarding his ability to stay
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legally in the United States. At that time, upon the advice of a
friend, he met "Mr. Ansara," whom he believed could help him with
his immigration case. While Velasquez referred to Ansara as a
lawyer, he conceded that Ansara never told him he was a lawyer.
After this initial meeting, Velasquez was able to meet with Ansara
only one more time before Ansara disappeared. Four months after
discovering Ansara's disappearance, Velasquez retained Dragon as
his attorney.
Based on this testimony, Dragon argued to the IJ that
Velasquez's asylum application was not subject to the one-year
filing deadline set forth in 8 U.S.C. § 1158(a)(2)(B)1 because of
changed and extraordinary circumstances. 8 U.S.C. § 1158(a)(2)(D)
(providing exceptions to one-year filing deadline when petitioner
has established "changed circumstances" or "extraordinary
circumstances"). In particular, Velasquez argued that since he
began to realize only in the summer of 1998 (when he learned that
members of Populares Milicias were still looking for him) that the
country conditions in Colombia had changed such that his problems
there were not going to abate, it was impossible for him to have
filed an application for asylum by the one-year deadline, which
1
Section 1158(a)(1) states, "[a]ny alien who is physically
present in the United States or who arrives in the United States.
. . may apply for asylum . . . ." Section 1158(a)(2)(B) states,
however, that "paragraph (1) shall not apply to an alien unless the
alien demonstrates by clear and convincing evidence that the
application has been filed within 1 year after the date of the
alien's arrival in the United States."
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expired on April 1, 1998.2 He further argued that these
constituted extraordinary circumstances, or events beyond
Velasquez's control, that made it impossible for Velasquez to meet
the filing deadline. He noted that Velasquez filed his asylum
application in July of 1999, which he said was shortly after these
developments came to light.
At the end of the hearing, on May 4, 2000, the IJ issued
her oral decision. She concluded that Velasquez had established no
basis for her to apply the changed or extraordinary circumstances
exceptions to the one-year deadline for asylum applications.
Accordingly, she pretermitted Velasquez's asylum application
pursuant to 8 U.S.C. § 1158(a)(2)(B). The IJ, nevertheless, went
on "in the alternative" to consider the merits of the asylum claim,
together with the withholding of removal and Convention Against
Torture claims, which did not have specific filing deadlines. The
IJ commented that, "[m]uch of the evidence, essentially, is the
same for all three forms of relief . . . . [Velasquez] stated that
he had no additional evidence on the issue of withholding or relief
under Article 3 of the Convention Against Torture."
2
The basis for the IJ's conclusion that the one-year deadline
expired on April 1, 1998 does not appear in the record, nor is it
explained in the briefs. Possibly the arrival dates of other
family members are relevant. The parties, including the
government, do not dispute that the deadline expired on that date,
hence we accept it as controlling.
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The IJ rejected Velasquez's contention that he was
persecuted for his membership in a particular social group or for
his political opinion, requirements set out in the INS's relevant
regulation, 8 C.F.R. § 208.13(a). Threats and injuries at the
hands of the Populares Milicias were not, in her view, shown to
have been on account of his political opinion. Nor did she find
that Velasquez had shown he belonged to a particular "social group"
-- at most, he was a member of the merchant class, which was not
enough.
Most importantly, the IJ questioned the consistency of
Velasquez's testimony. She wondered whether he truly feared
Populares Milicias in light of his willingness to repeatedly return
to Colombia even after he was forced to pay the war tax. In any
event, having been both assaulted and threatened as early as in
1995, he was well aware of that group's threat several years prior
to the expiration of the time for his seeking asylum. She further
stated:
As to [Velasquez's] credibility, I find that
he may be telling the truth about these
various assaults; he does have some police
reports in corroboration. The respondent,
however, I believe is not credible when he
makes wild speculations such as the people, in
fact, who had extorted from him. There's no
foundation for that . . . In general, I do not
find the respondent to be particularly
credible.
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In the IJ's opinion, Velasquez and his family relocated to the
United States, not out of fear, but because it provided better
"prospects."
The IJ concluded that Velasquez was not eligible for
asylum, withholding of removal, or relief under the Convention
Against Torture. She denied Velasquez's application and ordered
his removal to Colombia. Velasquez timely appealed to the Board.
On November 19, 2002, the Board affirmed the IJ's order without
opinion. Velasquez did not petition this Court for review of the
Board's affirmance. 8 U.S.C. § 1252(b)(1). However, on December
17, 2002, Velasquez timely filed with the Board a motion styled as
one to reopen.3 Velasquez argued that his discovery from a
November 25, 2002 letter that attorney Dragon had been disbarred on
August 23, 20024 constituted a "new fact" under 8 C.F.R. §
3While the motion was styled as a "Motion to Reopen," it
appears also to have been a motion for reconsideration as, in
addition to having raised new facts that would allegedly merit
reopening, it contained arguments that the Board erred as a matter
of fact or law. 8 C.F.R. § 1003.2(c) ("A motion to reopen
proceedings shall state the new facts that will be proven at a
hearing to be held if the motion is granted and shall be supported
by affidavits or other evidentiary material."); Zhang v. INS, 348
F.3d 289, 293 (1st Cir. 2003) ("The purpose of a motion to
reconsider is not to raise new facts, but to demonstrate that the
[Board] erred as a matter of law or fact."). The Board, itself,
interpreted the motion as a motion to "reopen and reconsider." In
keeping with the Board's reading of Velasquez's motion, we shall
treat it as if it were two motions -- a motion to reopen and a
motion to reconsider.
4
It does not appear, and Velasquez does not contend, that
Dragon acted as Velasquez's attorney after having been disbarred.
Dragon was disbarred on August 23, 2002 -- between the filing of
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103.4(a)(2) meriting reopening. He further argued that the IJ
erred as a matter of law in denying the asylum and related
applications. On April 17, 2003, the Board denied the motion, and
Velasquez timely petitioned for review by this Court. 8 U.S.C. §
1252(b).
I. Motion to Reopen
We first review the Board's denial of Velasquez's motion
to reopen.
A motion to reopen proceedings shall not be
granted unless it appears to the Board that
evidence sought to be offered is material and
was not available and could not have been
discovered or presented at the former hearing;
nor shall any motion to reopen for the purpose
of affording the alien an opportunity to apply
for any form of discretionary relief be
granted if it appears that the alien's right
to apply for such relief was fully explained
to him or her and an opportunity to apply
therefore was afforded at the former hearing,
unless the relief is sought on the basis of
circumstances that have arisen subsequent to
the hearing.
Velasquez's initial appeal from the IJ's order to the Board in June
of 2000 and the issuance of the Board's affirmance of that order on
November 19, 2002. On November 25, 2002, less than a week after
the Board's ruling, Velasquez received the letter informing him of
Dragon's disbarment. Velasquez immediately retained Walter Gleason
as his new attorney. Gleason then filed the motion to reopen and
reconsider addressed to the Board.
Velasquez does not argue that Dragon is to blame for his
failure to file a petition for review of the Board's November 19,
2002 order. Indeed, it appears that he had retained Gleason prior
to the expiration date to file such a petition. 8 U.S.C. §
1252(b)(1)(generally allowing 30 days after date of order of
removal for filing of petition for review of order).
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8 C.F.R. § 1003.2(c), formerly codified in 8 C.F.R. § 3.2(c); see
also Zhang, 348 F.3d at 292 (stating, "Courts recognize two
independent, but non-exclusive grounds on which the [Board] may
deny a motion to reopen: (1) failure to establish a prima facie
case, and (2) failure to introduce previously unavailable, material
evidence.") (citing Fesseha v. Ashcroft, 333 F.3d 13, 20 (1st Cir.
2003)). Subject to these and other limitations, a motion to reopen
may be granted if the alien demonstrates that he or she was
statutorily eligible for such relief prior to the entry of the
administratively final order of deportation. 8 C.F.R. § 1003.2(c).
The decision to grant or deny a motion to reopen or
reconsider is within the discretion of the Board, and the Board has
discretion to deny a motion to reopen even if the moving party has
made out a prima facie case for relief. 8 C.F.R. § 1003.2(a),
formerly codified in 8 C.F.R. § 3.2(a). Accordingly, we only
overturn the Board's ruling for an abuse of discretion. Zhang, 348
F.3d at 292.
Under the abuse of discretion standard, the Board's legal
conclusions are reviewed de novo, according due weight to the
Board's expertise in construing the statutory framework that it
administers.5 Radkov v. Ashcroft, No. O2-2666, 2004 U.S. App.
5
Velasquez argues we should not defer to the Board's statutory
interpretation and, instead, should hold the Board to "the
fiduciary standard of responsibility to immigrants -- the highest
duty recognized under law." As Velasquez cites no authority for
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LEXIS 14314, *5 (July 14, 2004). "In the immigration context, as
elsewhere, an error of law on the trier's part comprises an abuse
of discretion." Id.Here, Velasquez argues the case should be reopened
because he later discovered he had received ineffective assistance
of counsel denying him his rights under both the Sixth Amendment
and the Due Process Clause. The Board rejected this argument,
finding that Velasquez had received a full and fair hearing before
an IJ, in which he was given the opportunity to apply for any
relief for which he was eligible, and because it could find in the
record no violations of his rights to due process and no prejudice
caused by the representation afforded by his counsel. The Board
did not abuse its discretion.
We address only Velasquez's due process claim; as
"[t]here is no Sixth Amendment right to counsel in deportation,
which is a civil proceeding, but several courts of appeals
(including this one) have said that where counsel does appear for
the respondent, incompetence in some situations may make the
proceeding fundamentally unfair and give rise to a Fifth Amendment
due process objection." Hernandez v. Reno, 238 F.3d 50, 55 (1st
Cir. 2001) (citing Lozada v. INS, 857 F.2d 10, 13 (1st Cir. 1988)).
A proceeding is fundamentally unfair when the alien is prevented
this proposition, we decline to adopt that standard here.
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from reasonably presenting his or her case. Id.At the time Dragon represented him, Dragon was still a
member of the bar, qualified to act as an attorney. There is no
evidence in the record relative to the reasons for disbarment or
otherwise that could indicate Dragon's peculiar incompetence to act
in Velasquez's case while still licensed (the disbarment was for
misconduct elsewhere).
Velasquez provided no specifics to the Board reflecting
incompetence by counsel that interfered with the reasonable
presentation of his case. He noted "problems" with Dragon that he
said compounded a prior bad experience with non-attorney Ansara.
Velasquez accused Dragon of distraction (seemingly ascribed to
Dragon's own disbarment proceedings, then in progress), diminished
commitment, and lack of zealous advocacy, but provided little or
nothing tangible to support these assertions. Velasquez also adds
that Dragon's difficulty understanding Spanish handicapped him, but
this argument would not amount to evidence that "was not available
and could not have been discovered or presented at the former
hearing" as is required by 8 C.F.R. § 1003.2(c).
Velasquez argues that he is not required to provide
specific examples of prejudice because the denial of effective
assistance was so clear in the circumstances and the harm --
removal -- was facially demonstrable. In doing so, he relies on
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our statement in U.S. v. Loasiga, 104 F.3d 484, 488 (1st Cir. 1997)
that, "[p]erhaps there may be deportations where a denial of
counsel was so flagrant, and the difficulty of proving prejudice so
great, as to argue for presuming harm." While we have yet to
answer whether such a situation exists, we need not do so here
because Velasquez in fact had counsel and there was no showing that
counsel did not provide effective assistance. Dragon elicited from
Velasquez testimony germane both to the issue of whether the one-
year deadline for asylum claims applied and to the merits of
Velasquez's application. He further provided documents in support
of Velasquez's testimony, including the application materials that
he had prepared, country reports for Colombia released by the
United States Department of State in 1998, 1999, and 2000, releases
from Amnesty International, an affidavit from Velasquez, letters
from a former employer and from a friend of Velasquez, police
reports, travel documents, and newspaper articles.
Accordingly, the circumstances pertaining to Dragon and
his subsequent disbarment provide no reason for us to find that the
Board abused its discretion in denying the motion to reopen.
II. Motion to Reconsider
We turn next to Velasquez's imputed 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
and shall be supported by pertinent authority." 8 C.F.R. §
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1003.2(b)(1), formerly codified as 8 C.F.R. § 3.2(b)(1). Again, we
review the Board's determination solely for an abuse of discretion.
Zhang, 348 F.3d at 293; Nascimento v. INS, 274 F.3d 26, 28 (1st
Cir. 2001). "In the reconsideration context, we will find an abuse
of discretion if the denial was made without a 'rational
explanation, inexplicably departed from established policies, or
rested on an impermissible basis' (such as race)." Zhang, 348 F.3d
at 293 (quoting Nascimento, 274 F.3d at 28).
In his brief to this Court, Velasquez argues that the IJ
erred in three respects: (1) concluding that this case is not
subject to the extraordinary circumstances exception of 8 U.S.C. §
1158(a)(2)(D) given the delay caused by Ansara; (2) concluding this
case is not subject to the changed circumstances exception of 8
U.S.C. § 1158(a)(2)(D)6 given especially State Department documents
6
Although not raised by the parties, there is some question as
to whether this Court has jurisdiction to consider Velasquez's
arguments concerning 8 U.S.C. § 1158. As mentioned, the IJ
pretermitted Velasquez's asylum application pursuant to section
1158(a)(2)(B). Section 1158(a)(3) provides that "[n]o Court shall
have jurisdiction to review any determination of the Attorney
General under [inter alia, section 1158(a)(2)(B)]."
In Haoud v. Ashcroft, 350 F.3d 201, 205 (1st Cir. 2003) we
discussed the application of section 1158(a)(3) to our review of
a Board decision on direct appeal from an IJ's determination under
section 1158(a)(2)(B). There, we stated "that 8 U.S.C. §
1158(a)(3)could bar our review of the IJ's determination of the
timeliness of Haoud's asylum application . . . ."
We need and do not decide whether under Haoud we lack
jurisdiction over Velazquez's section 1158 arguments. Velasquez's
arguments concerning the timeliness of his asylum claim are plainly
without merit. We, therefore, see no need to delve into a
jurisdictional issue neither raised nor briefed by either party.
See, e.g., Restoration Pres. Masonry, Inc. v. Grove Eur. Ltd., 325
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submitted by Velasquez; (3) and placing the burden on him, rather
than the government, to prove that internal relocation in Colombia
would not be reasonable when she considered his asylum claim.7
While the Board did not individually address each of these
arguments in denying Velasquez's motion, it implicitly resolved
them, stating, "[we] . . . note that in our previous decision we
affirmed the Immigration Judge's decision denying the respondents'
applications because they failed to meet their burden to credibly
prove eligibility for the relief they requested. We do not find
any basis to disturb our previous decision." We turn to each of
Velasquez's arguments.
First, the Board was well within its rights to uphold
the IJ's conclusion that the extraordinary circumstances exception
to the one-year deadline for asylum applications set forth in 8
U.S.C. § 1158(a)(2)(D) did not apply here. Section 1158(a)(2)(D)
states in pertinent part, "[a]n application for asylum of an alien
may be considered . . . if the alien demonstrates . . .
F.3d 54, 59 (1st Cir. 2003) (courts may, in appropriate
circumstances, reserve difficult questions of statutory
jurisdiction when the case could alternatively be resolved on the
merits in favor of the same party).
7
Velasquez also argues that the IJ erred in failing to
recognize an "acquiescence" argument under the Convention Against
Torture. He did not raise this argument to the Board, however, so
it is waived. Cf. Zhang, 348 F.3d at 293 (holding that Board did
not abuse discretion by concluding that arguments developed for
first time on reconsideration appeal were waived).
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extraordinary circumstances relating to the delay in filing an
application within the [one-year deadline]." Based on Velasquez's
inconsistent testimony, the IJ concluded that the alleged
extraordinary circumstances -- meeting an individual whom he
mistakenly believed was an attorney and later discovering that the
individual had disappeared -- began at the earliest in the summer
of 1998, which was after the deadline had expired on April 1, 1998.
The record evidence supports the IJ's finding. The IJ was,
therefore, correct in concluding that these circumstances did not
constitute extraordinary circumstances relating to the delay in
filing an application within the one-year deadline. 8 U.S.C. §
1158(a)(2)(D).
Second, the Board justifiably rejected Velasquez's
argument that the IJ failed to give due weight to the submitted
State Department documents in determining that the changed
circumstances exception to the one-year deadline in 8 U.S.C. §
1158(a)(2)(D) did not apply here. In his brief to us, Velasquez
argues that these documents "support the premise that Colombia had
changed politically between 1996 and 1998 into what the Department
has calculated to be one of the most dangerous places on the
planet", and, therefore, the IJ's alleged failure to give weight to
these documents indicates that she improperly interpreted section
1158(a)(2)(D).
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In addition to the "extraordinary circumstances"
provision just mentioned, section 1158(a)(2)(D) also provides,
"[a]n application for asylum may be considered . . . if the alien
demonstrates . . . the existence of changed circumstances which
materially affect the applicant's eligibility for asylum . . . ."
During the hearing, Velasquez argued that his discovery that people
were still looking for him in 1998 constituted changed
circumstances under the statute. He did not refer to the State
Department documents as constituting additional or independent
grounds for concluding that changed circumstances existed. These
were submitted at the beginning of the hearing without articulation
of their relevance. In response to the argument that was
articulated, the IJ stated:
I find the assertion that someone was still
looking for him in 1998 and that is why he did
not file for asylum earlier not to constitute
changed circumstances. It appears to be,
assuming the truth of it although there's no
foundation particularly for it, that this
earlier pattern on which he bases his asylum
claim had begun back in April of 1995. So
[Velasquez] does not meet the burden on that
ground.
We find the conclusion to be reasonable. Velasquez testified to
having been assaulted by the Populares Milicias in 1995. He also
testified to wanting to stay in the United States indefinitely in
April of 1996 because of conditions in Colombia. We see no abuse
of discretion in the IJ's conclusion that Velasquez was, in effect,
fully aware of the basis of his asylum claim well before April 1,
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1998, when the one-year period for seeking asylum expired. The IJ
was entitled to conclude that circumstances already existing and
known to Velasquez prior to the one-year deadline were not changed
simply because of word that the Populares Milicias members were
still around and possibly inquiring for him. 8 U.S.C. §
1158(a)(2)(D). As Velasquez's prior beatings and the extortion
earlier practiced put him on notice of the risky conditions in
Colombia that particularly concerned him, the State Department
documents allegedly indicating an increase in lawlessness generally
added little.
Lastly, as Velasquez's asylum claim was properly
pretermitted, 8 U.S.C. § 1158(a)(2)(B), there is no need to examine
further into its possible merits. Accordingly, we do not review
Velasquez's third argument, which concerns the manner in which the
IJ handled "in the alternative" the merits of his asylum claim. As
Velasquez offers in his brief no cognizable arguments pertaining to
either the withholding of removal or Convention Against Torture
claims, we proceed no further.
Affirmed.
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