Filed: May 11, 2010
Latest Update: Feb. 21, 2020
Summary: CONSUELO BARRIENTOS;1, Barrientos' petition for review is filed jointly with Juan, Ramon Pineda, her husband and derivative beneficiary.The record indicates that prior counsel, the, DHS attorney, and the Immigration Judge asked, [Barrientos] questions relevant to the asylum, application.
Not for Publication in W est's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 09-1474
CONSUELO BARRIENTOS; JUAN RAMÓN PINEDA,
Petitioners,
v.
ERIC H. HOLDER JR.,
UNITED STATES ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Circuit Judge,
Souter, Associate Justice,* and Stahl, Circuit Judge.
Stephen M. Born for petitioners.
Gladys M. Steffens Guzmán, Trial Attorney, Office of
Immigration Litigation, Tony West, Assistant Attorney General, and
Anthony P. Nicastro, Senior Litigation Counsel, for respondent.
May 11, 2010
*
The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
STAHL, Circuit Judge. An immigration judge (IJ) denied
Consuelo Barrientos'1 application for asylum and withholding of
removal and the Board of Immigration Appeals (BIA) dismissed her
appeal of that denial. The BIA also contemporaneously denied
Barrientos' motion to remand proceedings, a request based on a
claim that Barrientos' prior counsel's alleged ineffective
assistance amounted to a due process violation. On appeal to this
court, Barrientos seeks review of both BIA determinations. After
careful consideration, we deny Barrientos' petition as to both
issues.
I. Background
In 1992, Consuelo Barrientos entered the United States
without inspection from Guatemala. She submitted three subsequent
asylum applications, in 1992, 1998, and 2006.2 In September 2006,
the Department of Homeland Security issued a Notice to Appear (NTA)
for being present in the United States without having been
previously admitted or paroled. Before the IJ, Barrientos admitted
the allegations in the NTA, conceded removability, and sought
relief pursuant to the Nicaraguan Adjustment and Central American
1
Barrientos' petition for review is filed jointly with Juan
Ramon Pineda, her husband and derivative beneficiary. Pineda is
also a native and citizen of Guatemala.
2
It is not clear from the record or briefs why the respondent
submitted three separate asylum applications or why the government
waited until 2006 to issue a Notice to Appear. Nonetheless, these
unresolved questions have no bearing on the legal issues before us.
-2-
Relief Act (NACARA), asylum, withholding of removal, the Convention
Against Torture, and voluntary departure.
The essence of Barrientos' asylum claim was that she fled
Guatemala in 1992 after being threatened by masked guerrillas who
demanded she reveal the location of her now-deceased first husband,
who had been a military commissioner in their town and who had fled
Guatemala for the United States when the guerrillas threatened to
kill him. Given twelve days to tell the guerrillas where her
husband was or face reprisals, Barrientos made provisions for her
children in Guatemala and then fled alone to the United States.
During her asylum hearing, she stated that she feared returning to
Guatemala because there are "still a lot of groups in Guatemala"
and "it's still dangerous." She also said she feared "groups that
are going around killing people [and] committing terrorist acts."
The IJ denied Barrientos' NACARA application, finding
that she did not meet the statutory requirement of a date of entry
into the United States before October 1, 1990. Further, assuming
the credibility of Barrientos' written asylum application and oral
testimony, the IJ denied asylum and withholding relief, concluding
that her claim of persecution by the guerrillas did not meet the
statutory requirements for past persecution or a well-founded fear
of future persecution. The IJ did grant Barrientos the limited
remedy of voluntary departure.
-3-
The BIA dismissed Barrientos' appeal of the IJ's denial
of asylum and withholding, concluding that she neither suffered
past persecution nor had a well-founded fear of future persecution,
and was thus ineligible for asylum and therefore also ineligible
for the non-discretionary relief of withholding of removal.
As to Barrientos' motion to remand proceedings based on
her former counsel's alleged ineffective assistance at the IJ
hearing, the BIA concluded that there was no evidence of a denial
of due process that would justify a remand:
The record indicates that prior counsel, the
DHS attorney, and the Immigration Judge asked
[Barrientos] questions relevant to the asylum
application. [Barrientos] on appeal [has] not
identified the facts or evidence that [she] was
precluded from providing that were material to
[her] application for relief from removal.
II. Discussion
A. Due Process Claim
We first address Barrientos' appeal of the BIA's denial
of her due process claim.3 Barrientos alleges that her counsel
before the IJ provided ineffective assistance by asserting grounds
3
As a preliminary matter, we decline the government's request
that we decide the question of whether there is a Fifth Amendment
right to counsel in removal proceedings when the relief sought is
non-discretionary, such as with withholding of removal. We need
not address that question in order to resolve the matter before us.
We also note that the Supreme Court's recent decision in Padilla v.
Kentucky, No. 08-651, 78 U.S.L.W. 4235 (U.S. March 31, 2010), does
not provide an answer to the question the government urges us to
consider.
-4-
for relief for which she was clearly ineligible,4 failing to submit
proper documentation in support of those ineligible claims, and
failing to prepare to present her asylum and withholding claims or
background materials supporting those claims. Indeed, after the IJ
determined that Barrientos was likely ineligible for relief under
NACARA and cancellation of removal, he requested that counsel
proceed by presenting Barrientos' asylum claim, to which counsel
replied, "I'm not prepared to go forward on that today, Judge."
The IJ replied:
Well, then you better be -- get prepared
because, you know, I, I, I put the case on
so that we could get an idea as to whether
or not there was some basis to the claim.
The IJ continued:
Well, you're going to have to ask her about
her asylum case. I mean, I've got an
interpreter here, I set aside three hours.
You can simply ask her why it is, if at all,
she's afraid to go back to Guatemala, if
you'd like.
Counsel then proceeded to ask Barrientos why she fled Guatemala and
whether she feared returning. Our review of the record shows that
Barrientos cogently narrated the basis of her asylum and
withholding claims, and that her oral account closely paralleled
4
Specifically, the attorney asserted claims for relief
pursuant to NACARA and cancellation of removal, neither of which
was appropriate given Barrientos' date of entry and her lack of a
United States citizen spouse, parent, or child.
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the one she gave in her written application as well as her
recitation of the facts on appeal to the BIA and to this court.
The record also shows that the IJ and counsel for the government
had the opportunity to ask appropriate and probing questions of
Barrientos regarding her claim of persecution.
"Ineffective assistance of counsel in a deportation
proceeding is a denial of due process only if the proceeding was so
fundamentally unfair that the alien was prevented from reasonably
presenting his case." Lozada v. INS, 857 F.2d 10, 13 (1st Cir.
1988) (internal quotation omitted); see also Guerrero-Santana v.
Gonzales,
499 F.3d 90, 93 (1st Cir. 2007); Betouche v. Ashcroft,
357 F.3d 147, 149 (1st Cir. 2004). To succeed on such a due
process claim, we have generally required the petitioner to show "a
reasonable probability of prejudice" caused by former counsel's
performance. Saakian v. INS,
252 F.3d 21, 25 (1st Cir. 2001); see
also Zeru v. Gonzales,
503 F.3d 59, 72 (1st Cir. 2007); Wang v.
Ashcroft,
367 F.3d 25, 28 (1st Cir. 2004).
Though Barrientos styled her motion before the BIA as a
motion to remand, "[a]s a procedural matter, a claim of ineffective
assistance of counsel is typically raised through a motion to
reopen, which can be brought before either the BIA or the IJ
directly." Saakian, 252 F.3d at 25. We review the BIA's denial of
a motion to reopen for abuse of discretion. See
Zeru, 503 F.3d at
71;
Wang, 367 F.3d at 26-27.
-6-
Former counsel's statement to the IJ that he was
unprepared to present the asylum claim certainly raises a serious
question as to his competence. In addition, the paltry supporting
evidence submitted by him on Barrientos' behalf raises further
concerns. Despite these concerns, we deny Barrientos' petition for
review on due process grounds because she has not put forth any
argument that former counsel's performance resulted in a reasonable
probability of prejudice. Indeed, she has failed to suggest any
facts, argument, or documentary evidence not submitted that might
have produced a different outcome as to her asylum claim.
Essentially, it appears she would have us remand for further
proceedings on the exact same claim and facts already presented and
denied. This falls far short of the required showing of
prejudice.5
5
To the extent that Barrientos makes a second due process
argument regarding the IJ's conduct of the hearing, we also deny
review. Barrientos briefly suggests that the IJ's conduct of the
hearing deprived her of due process because he "fail[ed] to re-set
the hearing to allow [Barrientos] to obtain competent
representation or to allow [Barrientos] to prepare [her] case more
fully with [her] attorney." We review such a claim de novo. See
Aguilar-Solis v. INS, 168 F.3d 565, 568 (1st Cir. 1999). The IJ's
insistence that counsel proceed in the face of counsel's statement
that he was not prepared certainly draws our attention. However,
we conclude that, in this case, this decision fell within the IJ's
"broad (though not uncabined) discretion over the conduct of trial
proceedings."
Id.
We also find no abuse of discretion in the BIA's conclusion
that Barrientos failed to comply with the procedural requirements
in effect at the time the appeal was filed for an ineffective
assistance claim, as set forth in Matter of Lozada, 19 I. & N. Dec.
637 (BIA 1988). See Beltre-Veloz v. Mukasey,
533 F.3d 7, 10 (1st
Cir. 2008).
-7-
B. Asylum Claim
Having reviewed the record carefully, we also deny
Barrientos' petition for review of the BIA's dismissal of her
asylum claim. We review only for "substantial evidence," and will
not reverse unless "'the record evidence would compel a reasonable
factfinder to make a contrary determination.'" Guzman v. INS, 327
F.3d 11, 15 (1st Cir. 2003) (quoting
Aguilar-Solis, 168 F.3d at
569). We find nothing in the record approaching such compelling
evidence to the contrary.
Even assuming that the record compelled the conclusion
that the guerrillas' threat against Barrientos amounted to past
persecution, the record does not compel (or even suggest) the
conclusion that Barrientos has an objective well-founded fear of
future persecution given that the threat against her occurred over
seventeen years ago, the husband the guerrillas were pursuing has
been deceased since 1995, Guatemala's civil war has concluded and
the country has transitioned to a multi-party democracy,6 and
Barrientos offered no reason she would be unable to relocate to
another part of the country where her former husband would be
unknown. See, e.g., Yatskin v. INS, 255 F.3d 5, 9 (1st Cir. 2001)
6
For country conditions, the IJ and the BIA relied on the U.S.
State Department Country Report on Guatemala (2006), submitted by
Barrientos and admitted into evidence by the IJ.
-8-
(outlining the standard for asylum). We thus deny Barrientos'
petition for review as to the asylum claim.7
III. Conclusion
For the foregoing reasons we deny Barrientos' petition
for review.
7
Because Barrientos does not meet the asylum standard, we need
not address her petition for review as to withholding, which
requires the higher showing of a clear probability of persecution.
See Aguilar-Solis, 168 F.3d at 569 n.3; see also Ang v. Gonzales,
430 F.3d 50, 58 (1st Cir. 2005).
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