Pomaquiza-Pomaquiza v. Garland ( 2022 )

20-748
Pomaquiza-Pomaquiza v. Garland
BIA
Leeds, IJ
A206 188 534
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 16th day of August, two thousand twenty-two.
PRESENT:
JON O. NEWMAN,
JOSEPH F. BIANCO,
MYRNA PÉREZ,
Circuit Judges.
_____________________________________
WILSON ORLANDO POMAQUIZA-POMAQUIZA,
Petitioner,
v. 20-748
NAC
MERRICK B. GARLAND, UNITED
STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Kevin E. Dehghani, Esq., New
Haven, CT.
FOR RESPONDENT: Jeffrey Bossert Clark, Acting
Assistant Attorney General;
Anthony C. Payne, Assistant
Director; Liza S. Murcia,
Attorney, Office of Immigration
Litigation, United States
Department of Justice, Washington,
DC.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioner Wilson Orlando Pomaquiza-Pomaquiza, a native
and citizen of Ecuador, seeks review of a February 13, 2020,
decision of the BIA, dismissing his appeal of a June 18, 2018,
decision of an immigration judge (“IJ”) denying his motion to
reopen his removal proceedings. In re Wilson Orlando
Pomaquiza-Pomaquiza, No. A 206 188 534 (B.I.A. Feb. 13, 2020),
aff’g A206 188 534 (Immig. Ct. N.Y.C. June 18, 2018). We
assume the parties’ familiarity with the underlying facts and
procedural history.
We review the BIA’s decision. See Yan Chen v. Gonzales,
417 F.3d 268, 271 (2d Cir. 2005). 1 We review the denial of a
1 We do not reach Pomaquiza-Pomaquiza’s argument concerning
the IJ’s acceptance of DHS’s opposition because the BIA did
not consider that opposition or adopt the IJ’s decision. In
any event, remand would be futile because the BIA denied
reopening based on Pomaquiza-Pomaquiza’s failure to
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motion to reopen for abuse of discretion. Jian Hui Shao v.
Mukasey, 546 F.3d 138, 168–69 (2d Cir. 2008). “[T]o prevail
on a claim of ineffective assistance of counsel, [the movant]
. . . must allege facts sufficient to show 1) that competent
counsel would have acted otherwise, and 2) that he was
prejudiced by his counsel’s performance.” Rabiu v. INS, 41
F.3d 879, 882 (2d Cir. 1994) (quotation marks omitted). A
movant arguing that he was prejudiced by former counsel’s
failure to file an application for relief “must make a prima
facie showing that he would have been eligible for the relief
and that he could have made a strong showing in support of
his application.” Id. The agency may deny reopening if “the
movant has not established a prima facie case for the
underlying substantive relief sought.” INS v. Abudu, 485
U.S. 94, 104 (1988).
The BIA did not “pre-judge” his asylum claim. Because
Pomaquiza-Pomaquiza sought reopening based on a claim that he
demonstrate prima facie eligibility for asylum, so it would
deny reopening for the same reasons even if it had addressed
his argument concerning DHS’s untimely opposition. See Xiao
Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 339 (2d Cir.
2006).
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was prejudiced by former counsel’s withdrawal of his asylum
application, the BIA necessarily assessed, and ultimately did
not find he presented a prima facie claim for asylum. See
Rabiu, 41 F.3d at 882. The BIA did not abuse its discretion
in doing so.
To establish prejudice, Pomaquiza-Pomaquiza had to make
a prima facie showing that he was persecuted, or had a well-
founded fear of persecution, in Ecuador, as necessary for
asylum. See 8 U.S.C. §§ 1101(a)(42), 1158(b)(1)(A), (B)(i).
“[P]ersecution is an extreme concept that does not include
every sort of treatment our society regards as offensive.”
Mei Fun Wong v. Holder, 633 F.3d 64, 72 (2d Cir. 2011)
(quotation marks omitted).
In the asylum application that his former counsel
withdrew, Pomaquiza-Pomaquiza asserted that he suffered
“harassment, discrimination, and severe poverty due to [his]
race as an indigenous person” belonging to the Quechuan
community, which is “discriminated against” and forced to
live in poverty because the government is prejudiced against
them and refuses to help them. He did not describe harassment
except verbal abuse by his grandfather, which he did not
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allege was based on his race. Pomaquiza-Pomaquiza also
submitted country conditions evidence and several affidavits
from family, but none described conduct that evidenced
Pomaquiza-Pomaquiza was persecuted, or had a well-founded
fear of persecution.
Given the lack of evidence that Pomaquiza-Pomaquiza had
faced or would face harm amounting to persecution, the BIA
reasonably concluded that he did not demonstrate the
requisite prejudice to reopen his removal proceedings based
on ineffective assistance of counsel. See Debeatham v.
Holder, 602 F.3d 481, 486 (2d Cir. 2010) (finding no prejudice
where “even if [former counsel] had presented all of the
evidence and made all of the arguments that petitioner now
claims he should have, petitioner has not shown that the
outcome of his removal proceedings would have been any
different”).
For the foregoing reasons, the petition for review is
DENIED. All pending motions and applications are DENIED and
stays VACATED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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