NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 15-2518
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ANA CECILIA DOMINGUEZ,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
_______________
On Petition for Review of an Order of the
United States Department of Justice
Board of Immigration Appeals
(BIA 1:A094-760-527)
Immigration Judge: Honorable Frederic G. Leeds
_______________
Submitted Under Third Circuit L.A.R. 34.1(a)
March 3, 2016
Before: JORDAN, GREENBERG, and SCIRICA, Circuit Judges.
(Filed: March 4, 2016)
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OPINION
_______________
This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
JORDAN, Circuit Judge.
Ana Cecilia Dominguez petitions for review of a decision of the Board of
Immigration Appeals (“BIA”) denying her motion to reconsider whether to reopen her
removal proceedings. We will deny the petition.
I. Background
Dominguez, a native and citizen of El Salvador, entered the United States on
January 17, 2000, as a nonimmigrant with permission to stay no longer than six months,
which she overstayed.
On March 9, 2001, in response to a “devastating” series of earthquakes in El
Salvador, the Attorney General of the United States designated nationals of El Salvador
eligible for benefits under the Temporary Protected Status (“TPS”) program, pursuant to
8 U.S.C. § 1254a(b)(1)(B). That meant that
TPS beneficiaries [were] not required to leave the United States and [could]
obtain work authorization. The granting of TPS does not lead to permanent
resident status. When the Attorney General terminates a country’s TPS
designation, beneficiaries return to the same immigration status they
maintained before TPS (unless that status had since expired or been
terminated) or to any other status they may have been granted while
registered for TPS.
Designation of El Salvador Under Temporary Protected Status Program, 66 Fed. Reg.
14,214 (Mar. 9, 2001) (emphasis added).
Dominguez repeatedly applied for TPS, and though she did receive a temporary
employment authorization card, she was consistently denied TPS for failure to show that
she met the eligibility requirements. After years of back-and-forth on her TPS
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applications, she received a Notice to Appear in 2008, charging her with being removable
under 8 U.S.C. § 1227(a)(1)(B), as a “nonimmigrant ... [who] remained in the United
States for a time longer than permitted.” (A.R. 1043.)
Shortly thereafter, in a hearing before an immigration judge (“IJ”), Dominguez,
through counsel, conceded the removability charge and said that she would not be
seeking asylum, withholding from removal, or relief under the Convention Against
Torture – instead, she would again seek TPS. The IJ denied her claim for TPS for failure
to prove continuous physical presence in this country, and that decision was affirmed by
the BIA. Dominguez was not promptly removed, and over the next several years filed
unsuccessful motions for the BIA to reconsider and reopen her proceedings. In each
instance, she was represented by the same attorney.
The proceedings leading to the present petition for review began on August 1,
2014, when Dominguez, through new counsel, filed another motion to reopen, this time
alleging ineffective assistance of counsel (“IAC”) and eligibility for political asylum or
withholding from removal. Her new claims were based on allegations that she was
targeted for extortion by gangs in El Salvador after they murdered her brother in 1994,
and that, seeking “revenge” against Dominguez, the gangs had murdered her daughter in
2008. (A.R. 135.) On November 26, 2014, the BIA denied the motion to reopen, and
Dominguez filed a motion to reconsider that decision.
The BIA denied her motion to reconsider on May 22, 2015, and that is the
decision before us now. The BIA gave several reasons for its ruling. First, Dominguez’s
IAC claim lacked the necessary allegation that her attorney’s performance was defective,
3
because it was “silent as to any agreement that was entered into between [her] and [her]
former counsel with respect to the actions to be taken by former counsel.” (A.R. 3.)
Moreover, the Board determined that Dominguez had not been diligent in presenting an
IAC claim since she had known as early as July 2008, when she had a removal hearing,
that her prior attorney asserted there was no viable claim for asylum, withholding of
removal, or CAT relief. Second, on the merits of her application for asylum, Dominguez
did not “show[] that the purported threats she received or the violence she fears is on
account of a ground protected by the” Immigration and Naturalization Act (“INA”).
(A.R. 3.) Nor did she provide “details surrounding the death of her daughter to support
the suggestion that her daughter was killed by the same gangs who threatened
[Dominguez] 15 years ago ... or that the [gangs] have any interest in [her] after these
many years.” (A.R. 3.) Third, she “failed to show that her untimely motion to reopen
should have been equitably tolled.” (A.R. 4.) Fourth, the documentation attached to her
asylum application was merely general information about violence in El Salvador, and
“there [was] nothing in the information that [she] submitted which relate[d] to ... her
personal circumstances in a manner so as to establish prima facie eligibility for relief ... .”
(A.R. 4.) Fifth, and finally, any request for “humanitarian relief” or “prosecutorial
discretion” had to be made to the Department of Homeland Security, and not to the BIA.
(A.R. 4.)
On June 19, 2015, Dominguez filed her petition for review of the BIA’s May 22,
2015 order.
4
II. Discussion
A. Jurisdiction and Standard of Review
The BIA had jurisdiction under 8 C.F.R. § 1003.2. We exercise jurisdiction
pursuant to 8 U.S.C. § 1252.
Both parties acknowledge our jurisdiction to review the BIA’s May 22, 2015
decision denying Dominguez’s motion to reconsider. The Attorney General contests,
however, our jurisdiction to consider the BIA’s November 26, 2014 decision denying
Dominguez’s motion to reopen. Of course, because Dominguez’s June 19, 2015 petition
for review was more than thirty days after the November 26, 2014 decision, the Attorney
General is correct. See 8 U.S.C. § 1252(b)(1) (establishing the thirty-day deadline to
petition for review); cf. Stone v. I.N.S., 514 U.S. 386, 405-06 (1995) (holding that a
motion to reconsider does not toll the time to petition for review of a removal order). But
that does not mean that the issues associated with the motion to reopen are not in play.
Given the administrative handling of the motion to reconsider, to some degree they are.
The procedural complexity of this case results in part from a dispute over whether
Dominguez took the steps necessary to raise an IAC claim, as established in Matter of
Lozada, 19 I. & N. Dec. 637, 639-40 (BIA 1988). Although, in its November 26, 2014
decision, the BIA did not consider Dominguez to have taken those steps, its May 22,
2015 decision changed course and acknowledged that she did present evidence
“generally[] reflect[ing] compliance with Matter of Lozada.” (A.R. 3.) Having satisfied
itself that Dominguez had met the procedural requirements to bring her IAC claim, the
BIA proceeded to the merits of the claim. After giving the merits of the IAC claim more
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thorough treatment than had been given in the November 26 decision, the BIA denied
reconsideration of its decision to not reopen the removal proceedings, emphasizing that
Dominguez had failed to show the necessary prejudice to sustain an IAC claim. In
reviewing the BIA’s decision not to reconsider, we are therefore reviewing that prejudice
determination.
We review the denial of motions to reconsider under a deferential standard of
review:
The denial of a motion to reconsider is [] reviewed for abuse of discretion.
We will disturb the BIA’s denial of a motion ... to reconsider only if it was
arbitrary, irrational, or contrary to law. In ruling on questions of law, we
review the BIA’s legal conclusions de novo. We review factual
determinations under a “substantial evidence” standard, which requires us
to treat findings of fact as conclusive unless any reasonable adjudicator
would be compelled to conclude to the contrary.
Borges v. Gonzales, 402 F.3d 398, 404 (3d Cir. 2005) (internal citations and quotation
marks omitted). Moreover, “[m]otions for reopening of immigration proceedings are
disfavored ... .” I.N.S. v. Doherty, 502 U.S. 314, 323 (1992). “Granting such motions too
freely will permit endless delay of deportation by aliens creative and fertile enough to
continuously produce new and material facts sufficient to establish a prima facie case.”
I.N.S. v. Abudu, 485 U.S. 94, 108 (1988) (quoting I.N.S. v. Jong Ha Wang, 450 U.S. 139,
143 n.5 (1981)).
We are therefore doubly deferential to the BIA’s determination in this case. First,
we review for abuse of discretion the BIA’s decision not to reconsider. Second, the
underlying decision to be reconsidered is a motion to reopen, which is itself disfavored.
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B. Ineffective Assistance of Counsel Claim
The Attorney General defends the BIA’s decision principally on the ground that
Dominguez failed to make a prima facie showing that she is eligible for asylum, and that
she therefore cannot sustain an IAC claim, since there is no evidence of prejudice from
her former counsel’s failure to seek asylum.1 We agree.
“To make out an ineffective-assistance-of-counsel claim, an alien must show that
prior counsel’s deficient performance prevented him from reasonably presenting his case
and caused him substantial prejudice.” Contreras v. Attorney General, 665 F.3d 578, 584
(3d Cir. 2012) (internal quotation marks omitted). “To prove prejudice, an alien must
show that there is a ‘reasonable likelihood’ that the result of the removal proceedings
would have been different had the error(s) not occurred.” Id. (quoting Fadiga v. Attorney
General, 488 F.3d 142, 159 (3d Cir. 2007)). In this case, then, Dominguez must establish
that, had her original counsel sought asylum or withholding of removal, there is a
“reasonable likelihood” that she would have prevailed. She has failed to do that.2
1
The Attorney General no longer contests that Dominguez met the procedural
requirements to bring an IAC claim, and now argues that any question of whether she
exercised the necessary diligence to bring an IAC claim is “ultimately irrelevant.”
(Answering Br. at 27.) Instead, the Attorney General relies solely on the lack of a
showing of prejudice on the merits of the IAC claim, so that the procedural issues
considered by the BIA “are moot.” (Answering Br. at 26)
2
In addition to defending the BIA’s prejudice determination on the merits, the
Attorney General argues that Dominguez has waived any arguments about the merits of
her IAC claim because she merely “summarily declares that she is eligible” for relief in
her brief. (Answering Br. at 19.) We agree that Dominguez’s brief is not a model of
clarity on this point, and that it focuses on the alleged incompetence of her former
attorney and the BIA’s supposed procedural failings without cogent argument for her
actual eligibility for asylum. She does argue, however, that she “was targeted by gangs in
7
“[A]n applicant [for asylum] has the burden of showing that [] persecution [she
claims to have suffered] was on account of the applicant’s race, religion, nationality,
membership in a particular social group, or political opinion.” Lukwago v. Ashcroft, 329
F.3d 157, 170 (3d Cir. 2003) (citing 8 C.F.R. § 208.13(b)(1)). In other words,
Dominguez had to at least make out a prima facie case that she faced “violence ... on
account of a ground protected by the [INA] ... .” (A.R. 3.) It was not enough for her
show to show that she faced “acts of private violence”; she had to establish that she “was
the victim of persecution, and not just the target of ordinary street violence.” Abdille v.
Ashcroft, 242 F.3d 477, 494-95 (3d Cir. 2001).
Dominguez presented the BIA with two forms of evidence that she was
persecuted, both of which the BIA correctly found were unpersuasive. First, she alleged
that she faced personal threats from gangs in El Salvador. She said that the threats started
in 1994 when the gang killed her brother for his refusal to “engage in criminal acts
ordered by them,” and she was then a visible organizer of his funeral. (A.R. 58)
Dominguez also alleged that, in 2008, her daughter was murdered by the gang “as
revenge against” her (i.e., Dominguez). (A.R. 65.) The BIA was correct, though, that
she provided no details other than naked assertions that “the same gangs who threatened
[Dominguez] 15 years ago” were responsible for her daughter’s death or that such gangs
“have any interest in [Dominguez] after these many years.” (A.R. 3.) Nor did she
El Salvador,” that her brother and daughter were killed by those gangs, and that such
allegations warrant “the benefit of a full hearing.” (Opening Br. at 20.) She should have
provided more of a factual foundation for her asylum claim, but, because we can sustain
the BIA’s determination on the merits, we will not rely on waiver to deny her petition.
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identify any particular social group that she was associated with and that supposedly was
the basis for the gangs’ threats against her, so she did not establish that “the purported
threats she received ... [were] on account of a ground protected by the [INA].”3 (A.R. 3.)
Second, Dominguez appended several articles and reports to her application
describing the general state of gang violence in El Salvador. The BIA correctly
concluded that “there is nothing in the information ... which relates to ... [Dominguez’s]
personal circumstances,” and that general “[e]vidence of violence and civil unrest in El
Salvador does not ... establish, without more, eligibility for the relief [Dominguez] now
seeks.” (A.R. 4.)4
“The Board has discretion to deny a motion to reopen even if the party moving has
made out a prima facie case for relief.” 8 C.F.R. § 1003.2(a). Here, Dominguez has
failed to establish any prima facie case that she is eligible for asylum, and therefore she
3
Dominguez did not cite any political opinion as the basis of persecution either.
Reading her application for asylum most charitably and making inferences on her behalf,
she perhaps suggests that her family is the “particular social group” being targeted. But
the supposed basis for her knowledge that she is still threatened by gangs in El Salvador
is that members of such gangs “came to [her family’s] house and told [her] mother and
[her] daughters that if [Dominguez] ever come[s] back to El Salvador [the gangs] will kill
[her].” (A.R. 65.) Dominguez’s own evidence, if credited, therefore suggests that the
gang’s interest in her is personal and not related to her family, whom the gang left
unharmed when delivering its threat.
4
Dominguez also suggests that the BIA “ignore[ed] the facts proffered in support
of her political asylum claim,” (Opening Br. at 20), but – as the Attorney General noted
in response – she “failed to specify which facts she believed the Board ‘ignored’”
(Answering Br. at 23).
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cannot demonstrate that she was prejudiced by any ineffective assistance of counsel.5 On
this record, it cannot be said that the BIA abused its discretion in denying her motion to
reconsider the earlier decision to not reopen her removal proceedings.
C. Request for an Evidentiary Hearing
Dominguez also asserts that she “is entitled to [an evidentiary] hearing on the
merits of [her] application ... without first having to establish prima facie eligibility for
the requested relief.” (Opening Br. at 21 (emphasis removed).) That is simply not so.
On at least one occasion, we have held that, when a prima facie case is made, the movant
“at least deserves a hearing,” but that is contingent on the prima facie case being made in
the first place. Guo v. Ashcroft, 386 F.3d 556, 564 (3d Cir. 2004). As we have just
stated, Dominguez has made no such prima facie case, so she is not entitled to a hearing.
In support of the contention that she is automatically entitled to a hearing,
Dominguez cites Zhu v. Attorney General, 744 F.3d 268 (3d Cir. 2014). But Zhu does
not support her claim.6 In that case, we ruled that, when an alien moves to reopen
removal proceedings on the basis of “evidence to establish a material change in country
5
“Since [the] standard [for withholding of removal] is more demanding than that
governing eligibility for asylum, an alien who fails to qualify for asylum is necessarily
ineligible for withholding of removal.” Valdiviezo-Galdamez v. Attorney General, 663
F.3d 582, 591 (3d Cir. 2011). Therefore, Dominguez’s failure to make a prima facie case
for asylum means she is also ineligible for withholding of removal.
6
Dominguez also cites an out-of-circuit case, Cordova v. Holder, 759 F.3d 332
(4th Cir. 2014), to support her claimed entitlement to an evidentiary hearing, but that also
provides no support for her claim. In Cordova, the Fourth Circuit remanded to the BIA
because it failed to properly analyze the particular social group proposed by the
petitioner; the case says nothing about a right to an evidentiary hearing on demand. See
id. at 338.
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conditions,” the BIA must “meaningfully consider[] the evidence and arguments” of the
movant. Id. at 272. We determined that the BIA “did not meaningfully address many of
the documents [the movant] presented,” so we “remand[ed] to the BIA for a more
thorough review and explanation.” Id. at 279. In Dominguez’s case, however, the record
suggests that the BIA fully considered her evidentiary submissions and found them
insufficient to make out a prima facie case for relief. We see no reason to disturb that
decision.
III. Conclusion
For the foregoing reasons, we will deny the petition for review.
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