NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 13 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARCO ANTONIO PALMA-BELLO, No. 14-70017
15-70146
Petitioner,
Agency No. A088-353-894
v.
JEFFERSON B. SESSIONS III, Attorney MEMORANDUM *
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 8, 2017**
Pasadena, California
Before: LINN,*** BERZON, and M. SMITH, Circuit Judges.
I
The Board of Immigration Appeals (“Board”) properly dismissed Marco
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Richard Linn, United States Circuit Judge for the U.S.
Court of Appeals for the Federal Circuit, sitting by designation.
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Palma-Bello’s (“Palma-Bello”) appeal from the denial of Palma-Bello’s application
for asylum, withholding of removal, and protection under the Convention Against
Torture (“CAT”).
A
Substantial evidence supports the Board’s conclusion that neither changed nor
extraordinary circumstances justify Palma-Bello’s late-filed asylum application.
All asylum applications must be filed within one year of the applicant’s most
recent entry into the United States. 8 U.S.C. § 1158(a)(2)(B). Palma-Bello filed his
asylum application in 2013, several years after his most recent entry into the United
States in 2007. His filing was well after the one-year deadline set forth in the statute.
Late filings may nevertheless be considered due to “changed circumstances
which materially affect the applicant's eligibility for asylum or extraordinary
circumstances relating to the delay in filing an application within the period specified
in subparagraph (B).” 8 U.S.C. § 1158(a)(2)(D). Palma-Bello, however, has failed
to identify any “changed circumstances” or other “extraordinary circumstances” that
would excuse his late filing. See 8 C.F.R. § 208.4(a)(4)(i) (defining “changed
circumstances”).
Palma-Bello contends that his failure to file the application within the one-
year period was the result of “[s]erious illness or mental or physical disability,
including any effects of persecution or violent harm suffered in [1998 and 2007]”
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and that his delay was otherwise reasonable. See 8 C.F.R. § 208.4(a)(5). But apart
from attorney argument, Palma-Bello failed to produce any evidence to connect the
persecution and harm he suffered in 1998 and 2007 with the delay in filing, or to
support his contention that he suffered any illness or mental or psychological
disability from those events. Moreover, Palma-Bello has not demonstrated that his
nearly six-year delay in filing the asylum application was reasonable. Palma-Bello’s
only evidence regarding the reasons for his delay was his testimony that he was
already in deportation proceedings, and that he believed—incorrectly—that only
Central Americans and not Mexicans were eligible for asylum. These reasons are
manifestly inadequate.
B
Substantial evidence supports the Board’s determination that Palma-Bello
failed to show eligibility for withholding of removal. An applicant may be eligible
for withholding of removal by showing that “his or her life or freedom would be
threatened in the proposed country of removal on account of race, religion,
nationality, membership in a particular social group, or political opinion.” 8 C.F.R.
§ 1208.16(b). Palma-Bello argues that he was previously subject to persecution in
1998 and 2007 on account of his membership in the social group of “former
member[s] of the Mexican military that participated in defrauding the government,”
and that he will likely be subject to future persecution in Mexico on that same
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account.
Prior persecution on account of membership in a protected class gives rise to
a rebuttable presumption of future persecution. See 8 C.F.R. § 1208.16(b)(1)(i).
Palma-Bello, however, has failed to show that the torture he suffered in 1998 or the
kidnapping he experienced in 2007 was on account of his membership in a protected
group. Rather, substantial evidence supports the Board’s conclusion that his 1998
torture was connected to an investigation into a fraud in which Palma-Bello admitted
participating. There is no evidence that the investigation was merely a pretense for
persecution for political or social reasons. See Dinu v. Ashcroft, 372 F.3d 1041,
1044 (9th Cir. 2004). Nor has Palma-Bello shown that his membership in a protected
group was “one of the motives” for his torture in 1998. Singh v. Gonzales, 439 F.3d
1100, 1112 (9th Cir. 2006), overruled on other grounds by Maldonado v. Lynch, 786
F.3d 1155 (9th Cir. 2015). Substantial evidence also supports the Board’s further
conclusion that the 2007 kidnapping did not target Palma-Bello for political or social
reasons but instead was all about collecting ransom. Indeed, the kidnappers did not
even know his name or that he was a former member of the military, let alone that
he allegedly was a member of a protected group. And the record is clear that the
kidnappers released him immediately upon receiving the ransom. This criminal
activity, even though performed by actors in uniform, is not the type of persecution
that gives rise to a presumption of future persecution. See Zetino v. Holder, 622 F.3d
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1007, 1016 (9th Cir. 2010) (“An alien’s desire to be free from harassment by
criminals motivated by theft . . . bears no nexus to a protected ground.”).
Palma-Bello has also failed to prove that it is more likely than not that he
would suffer future persecution on account of his membership in a social group. See
8 C.F.R. § 1208.16(b)(1)(iii). Palma-Bello lived in Mexico City without incident
for three years after the 1998 incident. Palma-Bello argues that he lived in fear for
those three years due to an increased military presence near his home. Palma-Bello
offers no evidence that the military presence was on his account, and his subjective
fear does not undercut the Board’s conclusion that he is not more likely than not to
be subject to future persecution. Moreover, he received an honorable discharge from
the same military that he alleges did and will persecute him in the future.
C
Substantial evidence supports the Board’s conclusion that Palma-Bello is not
eligible for deferral of removal under the CAT. Palma-Bello has not shown that it
is more likely than not that he would be tortured if returned to Mexico. The Board
properly considered his prior torture in 1998, but concluded that it did not establish
a likelihood of future torture for the reasons noted above. The correctness of the
Board’s conclusion is bolstered by evidence that Palma-Bello’s family in Mexico
has not been tortured, and that the 1998 and 2007 events were not connected.
II
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The Board did not abuse its discretion in denying Palma-Bello’s motion to
reopen on account of ineffective assistance of counsel.
An alien seeking to reopen proceedings bears a “heavy burden.” INS v.
Abudu, 485 U.S. 94, 110 (1988). To prevail on an ineffective assistance of counsel
claim, the alien must show that the “proceeding was so fundamentally unfair that the
alien was prevented from reasonably presenting his case,” Ortiz v. INS, 179 F.3d
1148, 1153 (9th Cir. 1999) (quoting Lopez v. INS, 775 F.2d 1015, 1017 (9th Cir.
1985)), and that the alien was prejudiced by counsel’s failures, Ahmed v. Mukasey,
548 F.3d 768, 771 (9th Cir. 2008).1 While Palma-Bello has noted several
omissions on counsel’s part, he has failed to carry his heavy burden of showing
prejudice from any alleged ineffective assistance of counsel.
Neither counsel’s failure to check the box in Palma-Bello’s asylum
application alleging persecution due to membership in a social group, nor any other
omissions by counsel, prejudiced Palma-Bello. Both the Immigration Judge (“IJ”)
and the Board considered all of Palma-Bello’s arguments relating to his past and
future persecution on account of membership in the alleged social group,
notwithstanding any deficient performance by counsel. The IJ and the Board simply
1
On a motion to reopen for ineffective assistance of counsel, the applicant must
also generally show compliance with the procedural requirements of Matter of
Lozada, 19 I&N Dec. 637 (BIA 1988). Castillo-Perez v. INS, 212 F.3d 518, 525
(9th Cir. 2000). There is no dispute that at the time of the motion to reopen, Palma-
Bello had satisfied those procedural requirements.
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found his arguments unconvincing. We see no abuse of discretion in concluding on
the motion to reopen that any omissions by counsel were not prejudicial.
Finally, the Board did not abuse its discretion in finding no prejudice in
counsel’s failure to argue that mental disability justified the untimely filing of the
asylum application. As discussed above, the only justification Palma-Bello
proffered for the delay was that he was already in deportation proceedings and that
he did not believe that individuals from Mexico were eligible for asylum. Palma-
Bello has still not provided evidence, in support of the argument in his motion to
reopen, that his delay in filing his application was due to the psychological trauma
of his past persecution. Palma-Bello therefore cannot show that he suffered any
prejudice due to counsel’s failure to justify late-filing on such grounds.
PETITION DENIED.