United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-2793
No. 11-1308
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Malaquias Ortiz-Puentes; Juan *
Ortiz-Puentes; Mari Consuelo *
Ortiz-Puentes, *
*
Petitioners, * Petition for Review of
* an Order of the Board
v. * of Immigration Appeals.
*
Eric H. Holder, Jr., Attorney General *
of the United States, *
*
Respondent. *
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Submitted: September 22, 2011
Filed: December 1, 2011
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Before LOKEN, BEAM, and MURPHY, Circuit Judges.
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LOKEN, Circuit Judge.
Petitioners are three siblings, citizens of Guatemala, who attempted to enter the
United States in December 2004 and were placed in removal proceedings. Conceding
removability, they applied for asylum and withholding of removal, claiming past
persecution and a well-founded fear of future persecution by “criminal gangs which
control most of Guatemala now” based upon petitioners’ political opinion and
membership in a particular social group. An immigration judge (IJ) denied the
applications, and the Board of Immigration Appeals (BIA) dismissed petitioners’
administrative appeal on the merits. Some months later, the BIA denied their motion
to reconsider its prior decision and to reopen the proceedings based on ineffective
assistance of counsel. Petitioners seek judicial review of both decisions. We deny
the petitions for review.
I. Denial of Asylum and Withholding of Removal
Petitioners Malaquias and Juan Ortiz-Puentes and their father, Gaspar, testified
at petitioners’ removal hearing. Counsel Roy Petty advised that he would not call the
third petitioner, Mari, because “she was very young when she left Guatemala, and I’m
not sure there’s a need for repetitive testimony.” Petitioners testified that, as
teenagers in Guatemala, they were harassed and beaten by members of criminal gangs
who stopped them on the way to school, demanded money, and urged them to join the
gangs, commit violent crimes, and sell drugs. The gangsters threatened to burn down
their house or “do something” to their family if they refused. Both refused to join
even though the gangs twice “beat [Malaquias] up pretty bad.” Petitioners were not
aware of any political involvement by the gangs. Juan and Gaspar did not know if
their family was involved in Guatemalan politics. Petitioners left Guatemala and
traveled to the United States in October 2004, leaving their mother and younger
siblings behind. Petty introduced supporting declarations, articles discussing Central
American gangs, and assessments of Guatemala's response to the problem.
An alien is eligible for asylum if the Attorney General determines that he or she
is a “refugee,” 8 U.S.C. § 1158(b)(1)(A), defined as a person who is unable or
unwilling to return to his or her country of origin “because of persecution or a well-
founded fear of persecution on account of race, religion, nationality, membership in
a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). A
protected ground must be “at least one central reason for persecuting the applicant.”
§ 1158(b)(1)(B)(i).
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Petitioners argued they were members of a “social group” comprised of young
Guatemalans who refused to join gangs and were persecuted -- beaten -- as a result.
In dismissing their administrative appeal, the BIA agreed with the IJ that “the nature
and context of the respondents’ claim -- one which entails criminal violence and
recruitment efforts by a Guatemalan gang -- does not implicate an enumerated
protected ground,” citing Matter of S-E-G-, 24 I. & N. Dec. 579 (BIA 2008). We
agree. A group of persons defined as those who suffer violence because they refused
to join criminal gangs “lacks the visibility and particularity required to constitute a
social group” for purposes of 8 U.S.C. § 1101(a)(42)(A). Constanza v. Holder, 647
F.3d 749, 753-54 (8th Cir. 2011); see Matter of S-E-G-, 24 I. & N. Dec. at 585, 588,
590. Nor did petitioners present evidence that the gang violence they suffered was
persecution on account of their political opinion. See INS v. Elias Zacarias, 502 U.S.
478, 481-84 (1992); Marroquin-Ochoma v. Holder, 574 F.3d 574, 578 (8th Cir.
2009); Matter of S-E-G-, 24 I. & N. Dec. at 588-89.
Because they did not satisfy the asylum requirements, petitioners have not met
the higher burden of proof necessary for withholding of removal. See Marroquin-
Ochoma, 574 F.3d at 579.
II. Denial of the Motion To Reopen
Less than ninety days after the BIA dismissed their administrative appeal,
petitioners moved to reopen the proceedings, represented by new counsel. See 8
C.F.R. § 1003.2(c)(1)-(2).1 The motion alleged ineffective assistance by attorney Roy
Petty in (i) causing them to miss opportunities for other relief; (ii) failing to file a
brief to the BIA; (iii) failing to call Mari to testify at the removal hearing; and (iv)
failing to make “numerous other arguments” in appealing the IJ’s adverse decision.
1
Petitioners also moved for reconsideration of the final order of removal. The
BIA properly dismissed that motion as untimely. See 8 C.F.R. § 1003.2(b)(2).
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The BIA, noting that petitioners’ eligibility for relief was “speculative[] at best,”
denied the motion because petitioners “have not shown that they were prejudiced by
their counsel’s performance.” We review the BIA’s decision to deny a timely motion
to reopen under a deferential abuse-of-discretion standard. Kucana v. Holder, 130 S.
Ct. 827, 834 (2010). When the motion was premised on claims of ineffective
assistance of counsel, we use the Board’s leading decision in Matter of Lozada, 19
I. & N. Dec. 637 (BIA 1988), as a “substantive and procedural compass.” Ochoa v.
Holder, 604 F.3d 546, 548 n.1 (8th Cir. 2010), cert. denied, 131 S. Ct. 3058 (2011).
Lozada required, inter alia, that petitioners inform former counsel Petty of the
allegations they were making and provide him an opportunity to respond, and
demonstrate that Petty’s performance prejudiced the outcome of the removal
proceedings. 19 I. & N. Dec. at 639-40.
(i) All three petitioners were minors when they came to the United States in
2004. Only Mari was still under the age of eighteen when the removal hearing
concluded in June 2009. Gaspar entered the United States in 1995 and became a
lawful permanent resident in 1999. He did not apply to become a naturalized citizen.
Petitioners argued in the motion to reopen that attorney Petty was ineffective in not
advising Gaspar to apply for naturalization while petitioners were under the age of
eighteen because, if granted, citizenship would have made his minor children eligible
for “automatic” citizenship. See 8 U.S.C. § 1431(a). In support, as required by
Lozada, they submitted a letter response from Petty in which he claimed that he
“repeatedly urged Gaspar to naturalize,” and an affidavit from Gaspar averring that
Petty “never told us that I could become a US citizen or that doing that would have
saved my children’s cases.” In denying relief on this ground, the BIA explained:
To be eligible for adjustment of status, a visa petition (Form I-
130) must be filed by the lawful permanent resident or United States
citizen relative, and an adjustment of status application (Form I-485)
must be submitted. There is no evidence provided with the present
motion showing that these documents have been filed. Regarding the
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acquired citizenship claim, there is still no evidence proffered that the
father has filed an application for naturalization (Form N-400). See
section 320 of the Act. The respondents have not included applications
for the relief sought, with supporting documents, as required by the
regulations. 8 C.F.R. § 1003.2(c)(1).
This reasoning is consistent with the applicable statutes and regulations and with the
BIA’s decision in Lozada. It also highlights the speculative nature of petitioners’
contention. Without these documents, the BIA had no concrete evidence that, if
Gaspar had applied for naturalization, he would have satisfied its stringent
requirements. See, e.g., 8 C.F.R. § 316.2 (eligibility for naturalization). There was
also no showing that petitioners would have met the requirements of § 1431(a) or,
alternatively, that they would have been eligible for adjustment of status in the
removal proceedings. See 8 U.S.C. § 1255(a), (c) (eligibility and exclusions).
On appeal, petitioners further argue that attorney Petty was ineffective for
failing to advise Gaspar to file a Form I-130 visa petition based on his lawful
permanent residence status. Petitioners hypothesize that if Petty had done this in
September 2005 when he began representing them, a visa number would have been
available in December 2009, allowing for adjustment of status before the close of the
reopening proceedings. We decline to consider this speculative contention because
it was not raised to the agency.
(ii)-(iv) Turning to the other alleged deficiencies in attorney Petty’s
performance, we have little difficulty concluding the BIA did not abuse its discretion
in finding that petitioners failed to show that the requisite prejudice resulted from
these deficiencies.2 Petty’s failure to file a brief on appeal to the BIA, which his letter
2
To show prejudice, the BIA ruled, petitioners “must show that there is a
reasonable probability that, but for the alleged errors by counsel, the result of the case
would have been different,” correctly citing our prior decision in Obleshchenko v.
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response admitted was a mistake, did not warrant a finding of prejudice because the
BIA noted the mistake but then decided petitioners’ appeal on the merits. Compare
Singh v. Ashcroft, 367 F.3d 1182, 1189 (9th Cir. 2004), where the court concluded
a similar mistake was prejudicial because the BIA dismissed the administrative appeal
for failure to file the required brief. Failing to call petitioner Mari at the removal
hearing did not warrant a finding of prejudice when petitioners did not show what
additional evidence of persecution she could have provided. See 8 U.S.C.
§ 1229a(c)(7)(B); 8 C.F.R. § 1003.2(c)(1). The contention that Mari needed to testify
because “there is no derivative asylum status for the sibling of an asylee,” even if
true, fails to establish prejudice because neither of Mari’s siblings was held to be
eligible for asylum relief.
Finally, the contention that Petty ignored additional arguments in appealing the
IJ’s adverse decision is of no significance given the BIA’s well-supported conclusion
that petitioners’ evidence at the removal hearing “had not established that the harm
was on account of a protected ground.” Petitioners assert on appeal that this
deficiency resulted from Petty’s failure to develop testimony at the hearing
establishing a “family-as-social-group” asylum claim. But the motion to reopen
failed to proffer any such evidence, as the statute and regulations required. See id.
For the foregoing reasons, the BIA did not err in denying asylum and
withholding-of-removal relief and acted well within its discretion in denying the
motion to reopen. We deny the petitions for review.
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Ashcroft, 392 F.3d 970, 972 (8th Cir. 2004).
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