Case: 16-60183 Document: 00514087070 Page: 1 Date Filed: 07/25/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-60183 FILED
Summary Calendar July 25, 2017
Lyle W. Cayce
Clerk
ROBERTO MADRIGALES RODRIGUEZ,
Petitioner
v.
JEFFERSON B. SESSIONS, III, U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A205 690 122
Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Roberto Madrigales Rodriguez petitions this court to review the Board of
Immigration Appeals’ denial of his motion to reopen removal proceedings
based on his previous counsel’s ineffective assistance. Madrigales argues that
denying his motion to reopen violates his due process rights because an
immigration judge has never assessed his claims in the first instance.
We review the Board’s denial of a motion to reopen under a “highly
deferential abuse-of-discretion standard,” reversing only when the decision is
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 16-60183 Document: 00514087070 Page: 2 Date Filed: 07/25/2017
No. 16-60183
“capricious, irrational, utterly without foundation in the evidence, based on
legally erroneous interpretations of statues or regulations, or based on
unexplained departures from regulations or established policies.” Barrios-
Cantarero v. Holder, 772 F.3d 1019, 1021 (5th Cir. 2014). To prevail on an
ineffective-assistance-of-counsel claim, the petitioner must show (1) ineffective
representation and (2) resulting “substantial prejudice.” Miranda-Lores v.
I.N.S., 17 F.3d 84, 85 (5th Cir. 1994). “Proving prejudice requires the
[p]etitioner to make a prima facie showing that [the petitioner] would have
been entitled to relief from deportation[.]” Id. Thus, the assertion that
Madrigales suffered prejudice merely because an immigration judge has yet to
hear his claims is insufficient.
Madrigales has not made the “prima facie showing” of prejudice. To
maintain an asylum claim, a petitioner must show that he legitimately fears
persecution based on “race, religion, nationality, membership in a particular
social group, or political opinion.” Orellana-Monson v. Holder, 685 F.3d 511,
518 (5th Cir. 2012). Madrigales argues only that he fears unidentified “gang
members [and] drug traffickers” because “they” called his mother pretending
to have kidnapped one of her children. Because Madrigales has not alleged
any well-founded fear of persecution based on a protected category, he has
failed to show prima facie eligibility for asylum or withholding of removal. See
Efe v. Ashcroft, 293 F.3d 899, 906 (5th Cir. 2002) (“Withholding is a higher
standard than asylum. Since [the petitioner] does not meet the bar for asylum,
he also does not meet the standard for withholding . . . .”). Accordingly,
Madrigales has not shown that the BIA abused its discretion by denying his
ineffective-assistance claim. See Barrios-Cantarero, 772 F.3d at 1021. We
therefore DENY his petition for review.
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