Filed: Sep. 13, 2011
Latest Update: Feb. 22, 2020
Summary: 10-2308-ag Herrera v. Holder BIA A073 542 349 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
Summary: 10-2308-ag Herrera v. Holder BIA A073 542 349 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “..
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10-2308-ag
Herrera v. Holder
BIA
A073 542 349
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 13th day of September, two thousand eleven.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 JON O. NEWMAN,
10 DEBRA ANN LIVINGSTON,
11 Circuit Judges.
12 _________________________________________
13
14 MARIO NELSON HERRERA,
15 Petitioner,
16
17 v. 10-2308-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _________________________________________
23
24 FOR PETITIONER: Douglas B. Payne, New York, New
25 York.
26
27 FOR RESPONDENT: Tony West, Assistant Attorney
28 General; John S. Hogan, Senior
29 Litigation Counsel; David H.
30 Wetmore, Trial Attorney, Office of
31 Immigration Litigation, United
32 States Department of Justice,
33 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED, that the petition for review
4 is DENIED.
5 Petitioner Mario Nelson Herrera, a native and citizen
6 of Guatemala, seeks review of a May 19, 2010, decision of
7 the BIA denying his motion to reopen. In re Mario Nelson
8 Herrera, No. A073 542 349 (B.I.A. May 19, 2010). We assume
9 the parties’ familiarity with the underlying facts and
10 procedural history of the case.
11 We review the BIA’s denial of a motion to reopen for
12 abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d
13 Cir. 2005) (per curiam). A movant claiming ineffective
14 assistance of former counsel must show that competent
15 counsel would have acted otherwise, and that the alien was
16 prejudiced by his counsel’s performance. See Rabiu v. INS,
17
41 F.3d 879, 882-83 (2d Cir. 1994); Esposito v. INS, 987
18 F.2d 108, 111 (2d Cir. 1993). In order to show actual
19 prejudice resulted from counsel’s failure to pursue certain
20 initiatives, the movant “must make a prima facie showing
21 that he would have been eligible for the relief and that he
22 could have made a strong showing in support of his
23 application.”
Rabiu, 41 F.3d at 882.
2
1 The BIA did not abuse its discretion in denying
2 Herrera’s motion to reopen. In concluding that Herrera
3 failed to demonstrate that he was prejudiced by his former
4 counsels’ failure to pursue asylum, withholding of removal,
5 and relief under the Convention Against Torture (“CAT”) in
6 either his removal proceedings or in a motion to reopen, the
7 BIA reasonably relied on Herrera’s failure to identify any
8 evidence establishing his prima facie eligibility for those
9 forms of relief. See id. Herrera’s claim that he feared
10 persecution and torture based on general strife in Guatemala
11 and on the Guatemalan military’s single unsuccessful attempt
12 to forcibly recruit him were insufficient to establish his
13 prima facie eligibility for relief. See INS v.
14 Elias-Zacarias,
502 U.S. 478, 482 (1992) (holding that “the
15 mere existence of a generalized ‘political’ motive
16 underlying...forced recruitment is inadequate to establish
17 (and, indeed, goes far to refute) the proposition that [an
18 alien] fears persecution on account of political opinion, as
19 § 101(a)(42) requires”); see also Pierre v. Gonzales, 502
20 F.3d 109, 118-19 (2d Cir. 2007) (agreeing with the BIA’s
21 holding that in order to demonstrate eligibility for CAT
22 relief, an applicant must submit evidence that his
3
1 anticipated torturers would specifically intend to cause him
2 severe pain and suffering); Melgar de Torres v. Reno, 191
3 F.3d 307, 314 n.3 (2d Cir. 1999) (recognizing that
4 “[g]eneral violence in [a country] does not constitute
5 persecution, nor can it form a basis for petitioner’s well-
6 founded fear of persecution”).
7 Moreover, contrary to Herrera’s contention, his
8 cousin’s murder in Guatemala did not demonstrate Herrera’s
9 prima facie eligibility for relief because that evidence did
10 not provide any details surrounding the murder and did not
11 indicate that Herrera and his cousin were similarly
12 situated. See Jian Hui Shao v. Mukasey,
546 F.3d 138, 161,
13 172 (2d Cir. 2008). Accordingly, because Herrera did not
14 demonstrate his prima facie eligibility for asylum,
15 withholding of removal, and CAT relief, the BIA did not
16 abuse its discretion in finding that he failed to establish
17 that he was prejudiced by his former counsels’ actions. See
18
Rabiu, 41 F.3d at 882-83.
19 For the foregoing reasons, the petition for review is
20 DENIED. As we have completed our review, any stay of
21 removal that the Court previously granted in this petition
22 is VACATED, and any pending motion for a stay of removal in
4
1 this petition is DISMISSED as moot. Any pending request for
2 oral argument in this petition is DENIED in accordance with
3 Federal Rule of Appellate Procedure 34(a)(2), and Second
4 Circuit Local Rule 34(b).
5 FOR THE COURT:
6 Catherine O’Hagan Wolfe, Clerk
7
8
5
