Pomaquiza-Pomaquiza v. Garland ( 2022 )


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  •     20-748
    Pomaquiza-Pomaquiza v. Garland
    BIA
    Leeds, IJ
    A206 188 534
    UNITED STATES COURT OF APPEALS
    FOR THE SECOND CIRCUIT
    SUMMARY ORDER
    RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
    FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
    APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
    IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
    ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER
    MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
    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
    2
    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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