Sergio Meda-Morales v. Alberto Gonzales , 293 F. App'x 431 ( 2008 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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Nos. 07-2432/08-1108
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Sergio L. Meda-Morales, *
*
Petitioner, *
* Petitions for Review of
v. * Orders of the Board
* of Immigration Appeals.
1
Michael B. Mukasey, Attorney General,*
* [UNPUBLISHED]
Respondent. *
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Submitted: September 5, 2008
Filed: September 23, 2008
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Before MELLOY, COLLOTON, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Guatemalan citizen Sergio Meda-Morales petitions for review of (1) an order
of the Board of Immigration Appeals (BIA) dismissing his appeal of an Immigration
Judge’s (IJ’s) denial of asylum and withholding of removal (No. 07-2432), and (2) the
BIA’s denial of his motion to reopen based on ineffective assistance of counsel and
new evidence (No. 08-1108). We deny both petitions.
1
Michael B. Mukasey has been appointed to serve as Attorney General of the
United States, and is substituted as respondent in No. 07-2432 pursuant to Federal
Rule of Appellate Procedure 43(c).
We review the denial of asylum under a substantial evidence standard. See
Sholla v. Gonzales, 492 F.3d 946, 950-51 (8th Cir. 2007) (standard of review); see
also Uanreroro v. Gonzales, 443 F.3d 1197, 1204 (10th Cir. 2006) (where BIA issued
single-member order, BIA’s decision is agency’s final order; however, where BIA
affirms IJ’s decision and incorporates IJ’s rationale or repeats condensed version of
IJ’s reasons, reviewing court may look to IJ’s decision for more complete explanation
of BIA’s grounds). We conclude that Meda-Morales did not establish past
persecution or a well-founded fear of future persecution based on a protected ground.
See Quomsieh v. Gonzales, 479 F.3d 602, 606 (8th Cir. 2007) (absent physical harm,
incidents of harassment and unfulfilled threats of injury are not persecution);
Makatengkeng v. Gonzales, 495 F.3d 876, 881 (8th Cir. 2007) (setting forth necessary
showings for asylum applicant to establish well-founded fear of future persecution);
Setiadi v. Gonzales, 437 F.3d 710, 714 (8th Cir. 2006) (allegations of general fear of
persecution because of isolated acts of violence against someone other than petitioner
are usually insufficient to establish fear of future persecution); Menjivar v. Gonzales,
416 F.3d 918, 921 (8th Cir. 2005) (when harm was inflicted by private individual, to
establish persecution asylum applicant must show that government condoned or at
least demonstrated complete helplessness to protect victims). Because Meda-Morales
failed to meet the lower burden of proof on his asylum claim, his claim for
withholding of removal fails as well. See Makatengkeng, 495 F.3d at 885.
We also conclude that the BIA did not abuse its discretion in denying Meda-
Morales’s motion to reopen. See Habchy v. Gonzales, 471 F.3d 858, 861 (8th Cir.
2006) (standard of review). First, there is no constitutional right to effective
assistance of counsel in removal proceedings. See Rafiyev v. Mukasey, Nos. 07-1317,
07-2406, 2008 WL 2967006, at *6 (8th Cir. Aug. 5, 2008) (holding that there is no
constitutional right under the Fifth Amendment to effective assistance of counsel in
removal proceeding; because due process claim based on ineffective assistance was
destined to fail, BIA did not abuse its discretion by refusing to reopen case). To the
extent that Meda-Morales brought his ineffective-assistance claim under a
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discretionary administrative authority to reopen proceedings, see Stroe v. INS, 256
F.3d 498, 501 (7th Cir. 2001) (assuming without deciding BIA has discretionary
authority to reopen proceedings for ineffective assistance of counsel in egregious
circumstances), the BIA did not abuse its discretion in concluding that counsel’s
performance was not so egregious as to render the hearing unfair. Second, Meda-
Morales’s new evidence--which was more indicative of a rise in random acts of
violence in Guatemala than a likelihood that he would face persecution if
returned--would not likely change the result of the proceedings. See Jalloh v.
Gonzales, 423 F.3d 894, 899 (8th Cir. 2005) (petitioner seeking to reopen proceedings
with new evidence faces “heavy burden”); Abdille v. Ashcroft, 242 F.3d 477, 494 (3d
Cir. 2001) (noting assaults on petitioner might represent random street violence, and
holding “[s]uch ordinary criminal activity does not rise to the level of persecution
necessary to establish eligibility for asylum”).
Accordingly, we deny both petitions.
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