United States Court of Appeals
For the First Circuit
No. 03-1958
MARTIN E. CANAVERAL TOBAN,
Petitioner,
v.
JOHN ASHCROFT, ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Lynch and Lipez, Circuit Judges, and
Rosenn,* Senior Circuit Judge.
Walter J. Gleason for petitioner.
William C. Minick, Attorney, Office of Immigration Litigation,
with whom Peter D. Keisler, Assistant Attorney General, Civil
Division, and Christopher C. Fuller, Senior Litigation Counsel,
Office of Immigration Litigation, were on brief, for respondent.
September 22, 2004
*
Of the Third Circuit, sitting by designation.
LIPEZ, Circuit Judge. Petitioner Martin E. Canaveral
Toban (“Canaveral”), a native and citizen of Colombia, seeks review
of the Board of Immigration Appeals' (BIA) denial of his motion to
reopen its summary affirmance of the Immigration Judge's (IJ)
deportation order. Recognizing that some of Canaveral’s claims
were not properly raised in a motion to reopen, the BIA treated his
motion as both a motion to reopen and a motion to reconsider. With
one minor exception, Canaveral focuses his appeal exclusively on
the portion of the BIA’s opinion denying his motion to reopen. He
argues that the BIA should have reopened the proceedings to permit
the IJ to consider his request for deferral of deportation under
the United Nations Convention Against Torture (CAT)1 and his claim
of ineffective assistance of counsel. Finding that the BIA acted
well within its discretion, we affirm.
I.
On December 19, 1992, petitioner Canaveral, a citizen of
Colombia, legally entered the United States as a nonimmigrant in
transit to a ship that was docked in New Orleans, Louisiana. He
never boarded the ship. Instead, he moved to Boston and, after
obtaining a fraudulent social security card, started working for a
shoe manufacturing company.
1
The Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85,
was implemented in the United States by the Foreign Affairs Reform
and Restructuring Act of 1998, Pub. L. No. 105-277, § 2242, 112
Stat. 2681-761 (codified at 8 U.S.C. § 1231 (2000)).
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In 1995, Canaveral gave a non-lawyer known as "Tony"2
nine hundred dollars to prepare an asylum application, which was
presented to the INS in 1997. “Tony” disappeared soon after he
completed Canaveral's application, forcing Canaveral to retract
that application and to inform the asylum officer that “Tony”
filled out the forms without his participation or consent.
Canaveral prepared a second application and presented that to the
INS.
The Immigration and Naturalization Service (INS)3 issued
a notice to appear on January 21, 1998, charging Canaveral as an
alien lawfully admitted to the United States who failed to maintain
the nonimmigrant status that he had when admitted in violation of
section 237(a)(1)(C)(i) of the Immigration and Nationality Act
(INA), 8 U.S.C. § 1227(a)(1)(C)(i). Conceding removability at his
hearing on January 28, 1999, Canaveral sought asylum and
withholding of removal pursuant to INA sections 208 and
243(b)(3)(A).
Canaveral testified before the IJ that he was afraid to
return to Colombia because he feared persecution by governmental
2
The record suggests that Tony portrayed himself as a lawyer
even though he apparently was not one.
3
In March 2003, the relevant functions of the INS were
transferred into the Department of Homeland Security and
reorganized as the Bureau of Immigration and Customs Enforcement
("BICE"). For simplicity we refer to the agency throughout this
opinion as the INS.
-3-
and non-governmental entities for his earlier political activities,
some of which were conducted in secret with the non-violent wing of
the Revolutionary Armed Forces of Colombia (FARC) when he was a
college student. Although his connection to FARC was secret, he
organized rallies and student strikes, and went door-to-door in
favor of education, economic, and health policy reform in his home
city of Itagüi between 1984 and 1992. He said that he received
anonymous death threats in response to his organizing efforts, and
that a partner in one of his early protests disappeared and was
later found murdered. Canaveral testified that the police beat him
in 1984 and in 1988 or 1989 after they stopped him and found FARC
literature in his possession. In the latter case, the police beat
him so severely that they knocked out his two front teeth and
fractured his ribs and femur. The police held him for two days,
accused him of being responsible for a bomb that had detonated in
the middle of town, threatened him with death, and then released
him outside of the city limits.
In the late 1980s, having decided that FARC had become
too violent, Canaveral took a job overseeing construction projects
for the city of Itagüi to allow him to stop his organizing work
with FARC. He authored a report in October 1992 documenting
massive corruption in the construction bidding process and,
rebuffing attempts to bribe him by contractors and other city
officials, he presented that report to the members of the city
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council. One month later, a man on a motorcycle opened fire on him
and a friend, wounding both. Canaveral went into hiding after that
attempt on his life, staying with a local priest and then with his
mother. With the priest's help, Canaveral was able to procure a
transit and a crewman's visa from the American Consulate in Bogota
on December 11, 1992 even though he did not work on a ship. The
local police department provided him with protection for
approximately seventy-eight hours while he obtained the visa.
After considering Canaveral's testimony and a significant
amount of country-specific evidence about Colombia, the IJ denied
Canaveral's asylum claim. Explaining that Canaveral did not
provide any specifics regarding his alleged involvement with FARC
and that his testimony demonstrated that Canaveral was able to
carry out his daily activities with little or no interference from
private or governmental entities, the IJ concluded that Canaveral
failed to establish past persecution or a well-founded fear of
future persecution.4 The IJ noted that Canaveral never identified
4
“An asylum applicant bears the burden of establishing that he
or she meets the statutory definition of a refugee and is therefore
eligible for asylum. 8 C.F.R. § 208.13(a). Applicants may meet
this burden in one of two ways. First, an applicant qualifies as a
refugee if he or she demonstrates a well-founded fear of
persecution on account of race, religion, nationality, membership
in a particular social group, or political opinion. 8 C.F.R. §
208.13(b). Alternatively, the applicant is entitled to a
presumption of a well-founded fear of persecution if he or she
establishes past persecution on account of one of the five
statutory grounds.” Mihaylov v. Ashcroft, 379 F.3d 15, 21 (1st Cir.
2004).
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himself as a FARC member to anyone outside the organization and
that there was no evidence suggesting that the Colombian government
thought that he was associated with the organization. In fact, the
lack of any documented follow-up by government officials after the
alleged beating in 1988 or 1989 and the police protection that
Canaveral received in 1992 suggested that the government did not
consider him a threat. The IJ characterized the gunfire incident
as a random act of violence lacking any demonstrable connection
with FARC or the government, and concluded that any threats that
Canaveral may have received before his departure were designed to
hide the corruption that Canaveral was attempting to uncover.
Moreover, the acts of violence that allegedly occurred in 1984,
1988 (or 1989) and 1992 were separated by a significant amount of
time and did not appear to be part of an organized persecution.
Finally, the IJ noted that Canaveral was able to leave Colombia
without incident and that there is no indication that individuals
associated with FARC or the government have made regular visits to
Canaveral's family home seeking his whereabouts. Accordingly, the
IJ concluded that "[t]here is no evidence that would clearly lead
[the court] to conclude that the government has taken action
against [Canaveral]." The IJ denied his asylum application and
ordered him deported to Colombia.
The IJ expressed concerns about Canaveral's credibility
because of the dishonest manner in which he obtained his visa, the
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false documents he used to obtain employment in Boston, his failure
to prevent the inclusion of false information in his original
asylum application, and questions about the honesty of the
translator that Canaveral provided for his initial hearing.
However, a closer reading of the IJ's decision reveals that he
found Canaveral's asylum case deficient apart from any adverse
credibility determination.
Canaveral appealed to the BIA, restating the evidence and
claiming that he feared persecution from the government for being
a former FARC member and from FARC itself for disavowing his
membership. The BIA affirmed the IJ's decision without comment on
December 20, 2002. Canaveral did not file a direct appeal of the
BIA's decision.
Canaveral's attorney passed away after he filed the
appeal to the BIA; Canaveral retained new counsel and filed a
motion captioned “Motion to Reopen (Asylum Case)” on January 15,
2003. He sought to reopen his asylum case to obtain relief under
the CAT and to address attorney incompetence (concerning the asylum
application prepared by "Tony"), the court's improper consideration
of this disavowed application (which he characterized as “Judicial
Arbitrariness”), and the IJ’s allegedly erroneous conclusion that
he failed to establish a well-founded fear of future persecution
which, even if established, could have been ameliorated by
relocating to another part of Colombia. Recognizing that
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Canaveral’s claims regarding his failure to establish future
persecution and the related relocation issue should have been
raised in a motion for reconsideration, the BIA treated these
claims within the framework of such a motion. It considered the
other claims within the framework of the motion to reopen.
The BIA rejected the motion to reconsider, affirming its
original analysis and stating:
We are not persuaded by the respondent's
contentions that our prior decision was either
legally, or factually, erroneous. Just as
this Board will not entertain a motion for
reconsideration for the sole purpose of
entertaining a late appeal, we will not grant
a motion for reconsideration for the sole
purpose of permitting a belated discussion
that should have been made at the time of the
original appeal to the Board.
It explicitly rejected Canaveral’s allegation that the potential
for relocation played a role in the IJ’s decision, stating that he
“failed to demonstrate what, if any, role ‘relocation’ played in
the Immigration Judge’s decision.”5 Concluding that Canaveral
failed to demonstrate prejudice from the alleged ineffective
assistance of counsel and that he failed to establish a prima facie
case under the CAT, the BIA denied his motion to reopen. Canaveral
5
Canaveral raises the same claim regarding relocation on
appeal. Once again, he fails to cite any evidence demonstrating
that the IJ rejected his asylum claim after concluding that he
could be relocated to a different part of Colombia. In fact,
relocation only comes into play if the alien successfully
establishes a prima facie case for asylum, and the IJ concluded
that Canaveral failed to do so. 8 C.F.R. § 208.13(b)(1)(ii),
(b)(2).
-8-
filed a timely appeal of the BIA's denial of his motion to
reconsider and motion to reopen. However, since the issues raised
by Canaveral on appeal were addressed by the Board within the
framework of the motion to reopen (the only exception being the
"relocation" issue which we have already dispatched), we limit our
review to the Board's denial of the motion to reopen.
II.
We review the BIA's denial of a motion to reopen for
abuse of discretion.6 See Betouche v. Ashcroft, 357 F.3d 147,
149-150 (1st Cir. 2004). "An abuse of discretion will be found
where the BIA misinterprets the law, or acts either arbitrarily or
capriciously." Wang v. Ashcroft, 367 F.3d 25, 27 (1st Cir. 2004).
A motion to reopen allows an alien to bring newly-discovered
evidence or grounds for relief to the attention of the BIA. Such
a motion must state the new facts to be proven or grounds to be
alleged. The BIA may only grant a motion to reopen based on new
facts if the “evidence sought to be offered is material and was not
available and could not have been discovered or presented at the
former hearing." 8 C.F.R. § 1003.2(c)(1). It may only grant a
motion to reopen to consider a new ground for relief if it appears
the alien’s right to apply for such relief was not fully explained
6
Canaveral argues in his brief that we should adopt a
“fiduciary” standard of review. He fails to support his argument
with any citation to pertinent authority and we are unaware of any
such authority. We reject his argument without further discussion.
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to him or her, that the alien did not have an opportunity to apply
for such relief at the earlier hearing, or that the newly-proffered
ground for relief is premised on changed circumstances. Id.
A. Convention Against Torture
Canaveral claims that he is entitled to relief under the
CAT based on the Colombian government's acquiescence in his likely
torture by FARC. The BIA rejected this proposition in his motion
to reopen, concluding that he failed to present a prima facie case
that he was eligible for relief under the applicable regulations.
See 8 C.F.R. § 1208.16(c); INS v. Abudu, 485 U.S. 94, 104-108
(1988) (relating the prima facie case requirement to the public
interest in "bringing litigation to a close as promptly as is
consistent with the interest in giving the adversaries a fair
opportunity to develop and present their respective cases"). We
agree.
To establish a valid claim for relief under the CAT, an
applicant must "establish that it is more likely than not that he
or she would be tortured if removed to the proposed country of
removal." 8 C.F.R. § 1208.16(c)(2). The term "torture" is defined
as:
[A]ny act by which severe pain or suffering,
whether physical or mental, is intentionally
inflicted on a person for such purposes as
obtaining from him or her or a third person
information or a confession, punishing him or
her for an act he or she or a third person has
committed or is suspected of having committed,
or intimidating or coercing him or her or a
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third person, or for any reason based on
discrimination of any kind, when such pain or
suffering is inflicted by or at the
instigation of or with the consent or
acquiescence of a public official or other
person acting in an official capacity.
8 C.F.R. § 1208.18(a)(1). The regulations also provide that
"[t]orture is an extreme form of cruel and inhuman treatment and
does not include lesser forms of cruel, inhuman or degrading
treatment or punishment that do not amount to torture." 8 C.F.R.
§ 1208.18(a)(2).
Canaveral claims that it is more likely than not that
either the Colombian government will torture him or that it will
acquiesce in his torture at the hands of FARC. However, as the BIA
observed, he failed to substantiate this claim with detailed
evidence that he will be tortured in the future or even that he was
tortured in the past. His briefs before the BIA and here on appeal
consist of general outlines of the legal principles applicable to
the CAT. They do not articulate, with any degree of specificity,
how those principles apply to Canaveral. As the government aptly
observed in its brief: “It is entirely unclear exactly who he
believes will torture him, what mistreatment he expects to suffer,
or, most importantly, what evidence supports his claim.” Given the
lack of detail in Canaveral’s motion to reopen, we have no
difficulty affirming the BIA’s decision denying his motion to
reopen to consider his CAT claim.
-11-
B. Ineffective Assistance of Counsel
Canaveral argues that "Tony" provided him with
ineffective assistance of counsel by presenting a fraudulent asylum
application, depriving him of due process. We normally apply the
factors listed in In re Matter of Lozada, 19 I. & N. Dec. 637 (BIA
1988), to such ineffectiveness claims: (1) the motion must be
supported by an affidavit detailing the agreement between counsel
and client, (2) the counsel must be informed of the allegations and
given a chance to respond, and (3) the motion must indicate whether
a complaint regarding any violation of counsel's ethical or legal
responsibilities has been filed with the relevant disciplinary
authorities and if not, why not. "Tony", of course, was not a
lawyer subject to the authority of a disciplinary body that could
receive complaints about his work. However, we do not have to
decide here the applicability of the Lozada factors to cases in
which non-lawyers represented aliens.7 Our precedents clearly hold
that, except in the extreme case, an alien must demonstrate
prejudice regardless of whether he or she meets the other Lozada
factors. See, e.g., Bernal-Vallejo v. INS, 195 F.3d 56, 64 (1st
7
Non-lawyers may represent aliens in immigration proceedings
under certain circumstances. 8 C.F.R. § 292.1. However, "Tony"
was probably ineligible to represent Canaveral in this situation
because he does not appear to have been a law student, 8 C.F.R. §
292.1(a)(2), a reputable individual appearing without remuneration,
8 C.F.R. § 292.1(a)(3), or an accredited representative of a non-
profit organization, 8 C.F.R. § 292.1(a)(4), 292.2, during the
events in question.
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Cir. 1999). Although we theorized in United States v. Loaisiga,
104 F.3d 484, 488 (1st Cir. 1997) that "there may be deportations
where a denial of counsel was so flagrant, and the difficulty of
proving prejudice so great, as to argue for presuming harm," this
is not such an extreme case. The IJ allowed Canaveral to submit a
new asylum application to replace the fraudulent one prepared with
the "help" of "Tony". Although the IJ alluded to the fraudulent
application as one of several factors that impaired Canaveral's
credibility, he did not characterize it as decisive on the issue of
credibility. More importantly, as already noted, the IJ's
determination was based on Canaveral's failure to produce
sufficient evidence; this is independent of any adverse credibility
determination. In the absence of any showing of prejudice from the
alleged ineffectiveness of a sham attorney, we conclude that the
BIA properly refused to reopen this case to address the claim of
ineffectiveness.8
Affirmed.
8
In addressing Canaveral's ineffectiveness claim, we have also
addressed his related claim of judicial arbitrariness because the
IJ allegedly refused to consider any evidence other than the
fraudulent asylum application. That characterization of the
judge's evaluation of the evidence is patently false.
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