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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-10598
Non-Argument Calendar
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Agency No. A205-675-190
DINORA ORTEGA MORALES,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(October 18, 2018)
Before WILSON, JORDAN, and ROSENBAUM, Circuit Judges.
PER CURIAM:
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Dinora Ortega Morales seeks review of the Board of Immigration Appeals’
(“BIA”) decision denying her motion to reopen removal proceedings based on a
claim of ineffective assistance of counsel. The BIA denied the motion to reopen
because it was untimely and because Morales had not established a reasonable
probability that, but for counsel’s errors, the outcome of her removal proceedings
would have been different. After careful review, we deny the petition for review.
I.
Morales, a native and citizen of Honduras, entered the United States in June
2012 on a six-month tourist visa. She hired an attorney, Teresa Martinez-Alonso,
and then filed an application for asylum, withholding of removal, and relief under
the Convention against Torture (“CAT”) in October 2012.
Morales sought asylum and withholding of removal based on her nationality
and membership in a particular social group. In an addendum to her application,
Morales explained that she had fled Honduras because she was being targeted and
threatened by individuals who had killed her brother after he found out about
corrupt practices at his place of work, the National Port Company (“NPC”), which
was a government entity in charge of commercial importation and exportation of
freight.
An asylum officer interviewed Morales and her husband and denied the
asylum application. Her visa expired in December 2012 and, shortly thereafter,
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Morales was issued a Notice to Appear charging her as removable for having
overstayed her visa. Morales conceded removability and presented her
applications for relief to an Immigration Judge (“IJ”), who held a merits hearing in
January 2014 at which Morales was represented by Martinez-Alonso.
Morales and her husband both testified at the hearing. They explained that
they had owned a telecommunications and security business in Honduras before
fleeing to the United States following the murder of Morales’s brother. According
to their testimony, Morales’s brother worked as a truck driver for a company that
handled the delivery of shipping containers for the NPC. The company was owned
by René Maradiaga Panchamé, the sub-director of the Honduran National Police.
At some point, Morales’s brother found out that the company was importing and
exporting contraband through the port. He began to fear for his life, and he told
Morales to stay away from him so she would not be connected with him.
On January 1, 2011, a man followed Morales’s brother to the Moraleses’
home and then spoke with her husband. This man, referred to by Morales and her
husband as the “coyote,” said he oversaw drug shipments for the company owned
by Maradiaga Panchamé. He asked Morales’s husband if he had security footage
of a murder that had occurred in front of the home, and he indicated he had
committed the murder. One week later, the coyote approached Morales as she was
getting out of her car and asked her about her brother’s delivery activities. She
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told him she didn’t know anything, and nothing further happened. About a week
after that, the coyote murdered her brother and his boss on the street near the
Moraleses’ home.
Morales and her husband further testified that, when they went to identify
her brother’s body at the morgue, four strange men approached and began asking
questions about her brother’s death. Morales and her husband claimed that they
knew nothing. Terrified about these events, Morales traveled to the United States
for six months to wait for things to calm down. She returned to Honduras in
November 2011. Meanwhile, after her brother’s death, her father began receiving
death threats against her over the phone, and her father told her of the threats.
Because the threats had not stopped, Morales secured a United States visa and left
Honduras in June 2012. Her father continued to receive threatening phone calls
against her, and he advised her not to come back. No other family member still
living in Honduras had been threatened or harmed.
The IJ denied Morales’s applications for asylum, withholding of removal,
and CAT relief. The IJ determined that Morales and her husband testified credibly
but that she failed to prove her eligibility for relief. The IJ first found that the
threatening phone calls to Morales’s father did not amount to persecution because
Morales was never physically harmed or threatened directly and there was no
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detail about the threats in the phone calls to her father. The IJ also found it
unlikely that Morales would continue to be targeted if she returned to Honduras.
The IJ further determined that Morales failed to establish a nexus between
any past or future persecution and a protected ground, specifically her membership
in a particular social group (her family). At best, according to the IJ, Morales
established that her brother was killed because of his work and his knowledge of
corruption involving the NPC. The IJ reasoned that, because the motive for the
murder was her brother’s knowledge of corruption, the coyote was interested in
Morales not because of her familial relationship but rather because of her potential
knowledge of what her brother had discovered. Noting the lack of evidence
showing that any of Morales’s other family members—apart from her father—had
been targeted or threatened, the IJ concluded that Morales had failed to establish
that she would be targeted on account of membership in a particular social group.
While the IJ credited Morales’s evidence that the company for which the coyote
worked was connected to the national police and that there was corruption in the
NPC, the court was not persuaded that this evidence showed that her brother’s
murder was anything other than a “criminal act[] . . . not based upon membership
in a particular social group.”
Finally, the IJ found that Morales failed to show that it was more likely than
not that she would face torture to which the government consented if returned to
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Honduras. The IJ noted that, while the coyote may have worked for the sub-
director of the national police, Morales had not indicated or alleged that the sub-
director “was in any way involved with the murder of her brother and would
threaten her.” Having denied her applications for relief, the IJ ordered Morales
removed to Honduras.
In August 2015, the BIA dismissed Morales’s appeal and affirmed the IJ’s
decision denying her applications for asylum, withholding of removal, and CAT
relief. The BIA broadly concluded that the record supported the IJ’s resolution of
Morales’s claims. Morales did not ask this Court to review the BIA’s decision.
Sometime later, Morales consulted another attorney and, in March 2017,
filed a motion to reopen her removal proceedings based on her former counsel’s
ineffective assistance. She asserted that former counsel, Martinez-Alonso, was
deficient in numerous ways—including failing to prepare Morales for the hearing,
failing to ask appropriate questions at the hearing, failing to submit proof of her
claim, failing to have her sister testify and corroborate her account, and failing to
establish the Honduran government’s involvement—and that she was prejudiced as
a result. She submitted a personal affidavit recounting many of these same
complaints. Though she acknowledged that her motion to reopen was untimely,
she maintained that equitable tolling applied because she filed the motion within
90 days of discovering former counsel’s ineffective assistance.
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The BIA denied Morales’s motion to reopen. The BIA determined that the
motion was untimely and it declined to apply equitable tolling, noting that Morales
had failed to provide details about the delay in filing her motion to reopen.
Further, the BIA determined that she had not proffered any facts or evidence,
beyond what was before the IJ, to establish that she was prejudiced due to former
counsel’s ineffectiveness. In particular, the BIA stated that, with regard to her
applications for asylum and withholding of removal, Morales had not demonstrated
“that the harm she fears would be on account of one of the protected grounds.” As
a result, the BIA found that there was no reasonable probability of a different
result. Morales now petitions this Court for review of the denial of her motion to
reopen.
II.
We review the BIA’s denial of a motion to reopen for an abuse of discretion.
Jiang v. U.S. Att’y Gen., 568 F.3d 1252, 1256 (11th Cir. 2009). Motions to reopen
are “particularly disfavored.” Id. “Our review is limited to determining whether
the BIA exercised its discretion in an arbitrary or capricious manner.” Id.
Motions to reopen removal proceedings ordinarily must be filed within 90
days of the final administrative decision. Id.; 8 U.S.C. § 1229a(c)(7)(C)(i); 8
C.F.R. § 1003.2(c)(2). The 90-day deadline is a non-jurisdictional claim-
processing rule subject to equitable tolling. Avila-Santoyo v. U.S. Att’y Gen., 713
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F.3d 1357, 1365 (11th Cir. 2013) (en banc). To establish equitable tolling, the
movant must show “(1) that he has been pursuing his rights diligently, and (2) that
some extraordinary circumstance stood in his way.” See id. at 1363 n.5 (quotation
marks omitted).
It is well established in this Circuit that “[a]liens enjoy the right to the
effective assistance of counsel in deportation proceedings” where counsel has been
obtained. Gbaya v. U.S. Att’y Gen., 342 F.3d 1219, 1221 (11th Cir. 2003). That
right is a component of the right to a fair hearing under the Fifth Amendment’s
Due Process Clause. Dakane v. U.S. Att’y Gen., 399 F.3d 1269, 1273 (11th Cir.
2005).
A claim of ineffective assistance of counsel may serve as the basis for a
motion to reopen.1 Id. To establish ineffective assistance in the context of a
1
The BIA generally requires motions to reopen based on ineffective assistance to satisfy
the three procedural requirements established in Matter of Lozada. Dakane, 399 F.3d at 1274.
According to Lozada,
A motion to reopen or reconsider based upon a claim of ineffective assistance of
counsel requires (1) that the motion be supported by an affidavit of the allegedly
aggrieved respondent setting forth in detail the agreement that was entered into
with counsel with respect to the actions to be taken and what representations
counsel did or did not make to the respondent in this regard, (2) that counsel
whose integrity or competence is being impugned be informed of the allegations
leveled against him and be given an opportunity to respond, and (3) that the
motion reflect whether a complaint has been filed with appropriate disciplinary
authorities with respect to any violation of counsel's ethical or legal
responsibilities, and if not, why not.
Matter of Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988). The BIA found, and the government
does not dispute, that Morales met the Lozada requirements in this case.
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removal proceeding, the movant must prove two things: (1) deficient
performance—that “counsel’s performance was deficient to the point that it
impinged the fundamental fairness of the hearing”; and (2) prejudice—that “there
is a reasonable probability that but for the attorney’s error, the outcome of the
proceedings would have been different.” Ali v. U.S. Att’y Gen., 643 F.3d 1324,
1329 (11th Cir. 2011). The BIA therefore does not abuse its discretion by denying
a motion to reopen that fails to establish prejudice. Dakane, 399 F.3d at 1274. An
applicant can establish prejudice by making a prima facie showing that she would
have been eligible for the relief sought. See id. (citing with approval two sister
circuit cases that held the same).
To establish eligibility for asylum, the applicant must show that she has
“refugee” status by showing past persecution or a well-founded fear of future
persecution on account of a statutorily protected ground, including race, religion,
nationality, political opinion, or membership in a particular social group. See
Mejia v. U.S. Att’y Gen., 498 F.3d 1253, 1256 (11th Cir. 2007). An applicant for
withholding of removal must show that is it more likely than not “that her ‘life or
freedom would be threatened in that country because of [her] race, religion,
nationality, membership in a particular social group, or political opinion.’”
Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1232 (11th Cir. 2005) (quoting 8
U.S.C. § 1231(b)(3)(A)). Eligibility for CAT relief requires a showing that it is
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more likely than not that the applicant would be tortured if returned to the
proposed country of removal and that the torture is by the government or with its
acquiescence. Reyes-Sanchez v. U.S. Att’y Gen., 369 F.3d 1239, 1242 (11th Cir.
2004).
III.
The BIA did not abuse its discretion by denying Morales’s motion to reopen
her removal proceedings based on ineffective assistance of counsel. Even
assuming without deciding that Morales is entitled to equitable tolling for her
motion to reopen, Morales has failed to make any showing that she was prejudiced
by former counsel’s ineffectiveness.
We first address the motion to reopen as it relates to Morales’s applications
for asylum and withholding of removal, which both require a showing of a nexus
to a protected ground. In the original removal proceeding, the IJ found that
Morales was credible but that she failed to establish a connection between her
experiences and a protected ground. According to the IJ, her testimony reflected
that she had been targeted due to her potential knowledge, through her brother, of
corruption at the NPC, not because of her membership in a particular social group
(her family). Thus, the key finding underlying the denial of asylum and
withholding of removal was the lack of a nexus, not Morales’s credibility or the
lack of corroborating evidence. Then, in denying the motion to reopen, the BIA
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found that Morales had presented no evidence or argument, beyond what was
before the IJ, indicating that the harm she feared was on account of a protected
ground. We agree with the BIA.
Morales’s motion to reopen does not show that, but for counsel’s ineffective
assistance, she could have established a nexus to a protected ground. She alleges
that counsel failed to prepare her for the hearing, asked “random” questions at the
hearing, and failed to present any evidence from Morales’s sister. These
deficiencies largely go to the credibility and completeness of Morales’s story. But
the IJ found Morales to be credible and accepted her testimony. And Morales does
not identify any additional evidence that could have been elicited with better
preparation or questioning, nor does she suggest that her sister’s testimony would
have been anything other than corroborative of her and her husband’s own credible
testimony. The affidavit attached to her motion to reopen merely stated that her
sister “knew the entire story of what happened to our brother and could help prove
that I was telling the truth.” Because the IJ found Morales to be credible, her
allegations of ineffective assistance relating to credibility and corroboration do not
establish a reasonable probability that she could have established eligibility for
relief.
Morales’s other allegations concern potential gaps in the evidence, but they
likewise fail to show that counsel’s alleged deficiencies prejudiced her applications
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for asylum or withholding of removal. Morales broadly asserts that her attorney
failed to provide the court with sufficient evidence that she would be targeted in
the future based on her family membership, but she identifies no evidence or
testimony that was not presented to the IJ or the BIA that could have been used to
meet her burden. An unsupported assertion that her attorney could have done more
to prove her claims is insufficient to show prejudice.
Morales also faults counsel for failing to establish a connection between her
brother’s murder and the Honduran government, but, again, she identifies no
evidence on that issue beyond what was before the IJ at the hearing. Contrary to
her contention, her attorney did introduce a letter showing that Morales’s brother
worked for a subsidiary of the government, and the IJ accepted it. Additionally,
the IJ accepted Morales’s and her husband’s testimony that her brother was killed
by a man who oversaw drug deliveries for the company owned by the sub-director
of the national police. But despite this evidence, the IJ concluded that her
brother’s murder was due to a criminal act related to his knowledge of corruption
at the NPC, not persecution based on his family membership, and nothing offered
by Morales in her motion to reopen or her affidavit challenges that conclusion.
For these reasons, Morales did not show that “there is a reasonable
probability that but for the attorney’s error, the outcome of the proceedings would
have been different.” See Ali, 643 F.3d at 1329. In particular, Morales’s motion to
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reopen does not indicate how she could have established the required nexus to a
protected ground for purposes of her applications for asylum and withholding of
removal. See Dakane, 399 F.3d at 1274. Accordingly, the BIA did not abuse its
discretion in denying her motion to reopen for failure to demonstrate “that the
harm she fears would be on account of one of the protected grounds.”
As for her application for CAT relief, the BIA likewise did not abuse its
discretion in denying Morales’s motion to reopen. In denying her CAT
application, the IJ found that, while the coyote may have worked for the sub-
director of the national police, Morales had not indicated or alleged that the sub-
director “was in any way involved with the murder of her brother and would
threaten her,” so there was no evidence that the government of Honduras would
torture or acquiesce in the torture of her. See Sanchez, 369 F.3d at 1242. Nothing
in Morales’s motion to reopen challenges that finding. As we have explained
above, while Morales faults former counsel for failing to establish a connection
between her brother’s murder and the Honduran government, she identifies no
evidence on that issue beyond what was before the IJ at the hearing. Accordingly,
the BIA did not abuse its discretion in finding that there was no reasonable
probability of a different result.
IV.
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In sum, Morales has not shown that she was prejudiced by her former
counsel’s alleged deficiencies in handling her applications for asylum, withholding
of removal, and CAT relief. See Dakane, 399 F.3d at 1274. The BIA therefore did
not abuse its discretion in denying her motion to reopen, see Jiang, 568 F.3d at
1256, so we deny her petition for review.
PETITION DENIED.
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