Cadmelema-Morocho v. Garland ( 2022 )

20-712
Cadmelema-Morocho v. Garland
BIA
Brennan, IJ
A208 912 062/208 782 488
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 TO 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 Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 17th day of May, two thousand twenty-two.
5
6 PRESENT:
7 MICHAEL H. PARK,
8 BETH ROBINSON,
9 MYRNA PÉREZ,
10 Circuit Judges.
11 _____________________________________
12
13 EDWIN F. CADMELEMA-MOROCHO,
14 JESSICA MARIANA SUMBA-VELECELA,
15 Petitioners,
16
17 v. 20-712
18 NAC
19 MERRICK B. GARLAND, UNITED
20 STATES ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Michael Borja, Esq., Jackson
25 Heights, NY.
26
27 FOR RESPONDENT: Jeffrey Bossert Clark, Acting
28 Assistant Attorney General; John
1 W. Blakeley, Assistant Director;
2 Elizabeth K. Fitzgerald-Sambou,
3 Trial Attorney, Office of
4 Immigration Litigation, United
5 States Department of Justice,
6 Washington, DC.
7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED that the petition for review
10 is DENIED.
11 Petitioners Edwin F. Cadmelema-Morocho and Jessica
12 Mariana Sumba-Velecela, natives and citizens of Ecuador, seek
13 review of a February 6, 2020 decision of the BIA affirming an
14 April 10, 2018 decision of an Immigration Judge (“IJ”) denying
15 asylum and withholding of removal. In re Cadmelema-Morocho,
16 No. A 208 912 062/208 782 488 (B.I.A. Feb. 6, 2020), aff’g
17 No. A 208 912 062/208 782 488 (Immig. Ct. N.Y.C. Apr. 10,
18 2018). We assume the parties’ familiarity with the
19 underlying facts and procedural history.
20 We have reviewed the IJ’s decision as modified and
21 supplemented by the BIA. See Xue Hong Yang v. U.S. Dep’t of
22 Justice, 426 F.3d 520, 522 (2d Cir. 2005); Yan Chen v.
23 Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable
24 standards of review are well established. See Paloka v.
2
1 Holder, 762 F.3d 191, 195 (2d Cir. 2014) (reviewing factual
2 findings for substantial evidence and questions of law and
3 application of law to undisputed facts de novo).
4 To demonstrate eligibility for asylum or withholding of
5 removal, “the applicant must establish that race, religion,
6 nationality, membership in a particular social group, or
7 political opinion was or will be at least one central reason
8 for persecuting the applicant.” 8 U.S.C. § 1158(b)(1)(B)(i);
9 see also id. § 1231(b)(3)(A). To constitute a particular
10 social group, a group must be: “(1) composed of members who
11 share a common immutable characteristic, (2) defined with
12 particularity, and (3) socially distinct within the society
13 in question.” Paloka, 762 F.3d at 196 (quoting Matter of M-
14 E-V-G-, 26 I. & N. Dec. 227, 237 (B.I.A. 2014)); see also
15 Ucelo-Gomez v. Mukasey, 509 F.3d 70, 72–74 (2d Cir. 2007).
16 We find no error in the agency’s conclusion that Petitioners
17 did not establish their membership in a cognizable particular
18 social group of witnesses to gang activity.
19 A group of witnesses may constitute a cognizable
20 particular social group. See Gashi v. Holder, 702 F.3d 130,
21 137 (2d Cir. 2012). In Gashi, the group members witnessed
3
1 war crimes and cooperated with a war crimes investigation,
2 their names appeared on a public list of potential witnesses,
3 and the number of cooperating witnesses was “finite, and . .
4 . quite limited.” Id. In contrast, the Petitioners here
5 interacted with the police only briefly: once when the police
6 were called to the scene when Petitioner Cadmelema-Morocho
7 was attacked, and once when they attempted to file a police
8 report. Although they attempted to file a police report, they
9 did not cooperate in an investigation of or testify against
10 the criminal gang, nor did they publicly voice their
11 opposition to the gang. On this record, petitioners have not
12 established membership in a sufficiently particular, well-
13 defined and socially distinct group to qualify as a cognizable
14 “particular social group.” See Paloka, 762 F.3d at 196
15 (explaining that “[a]lthough a persecutor’s perception can be
16 indicative of whether society views a group as distinct, a
17 persecutor’s perception alone is not enough to establish a
18 cognizable social group.”)
19 We also deny the petition as to the CAT claim.
20 Petitioners do not acknowledge in their brief to this Court
21 that the BIA concluded that they had waived the CAT claim,
4
1 and do not argue that the BIA erred in doing so. 1 See Norton
1
Petitioners checked a box for CAT relief on their
application. In her oral decision, the IJ stated she would
not reach the CAT claim because she found petitioners not
eligible for asylum “under the lower burden for asylum.” CAR
38. Petitioners’ brief on appeal to the BIA did not address
the IJ’s decision not to reach the CAT claim; instead
petitioners suggested that the IJ had reached and rejected
the CAT claim on its merits, and challenged that purported
decision. See CAR 12. On appeal, the BIA concluded that
petitioners did not pursue protection under CAT before the IJ
and thus “it was appropriate for the Immigration Judge to not
consider it.” CAR 4. Because petitioners’ brief to this
Court does not raise these inconsistencies, we do not address
them here.
However, petitioners may seek to file with the BIA a motion
to reopen removal proceedings based on ineffective assistance
of counsel before the IJ or the BIA with respect to their CAT
claim. We express no opinion as to the merits of a claim,
or whether this case would warrant equitable tolling. See 8
U.S.C. § 1229a(c)(7)(C)(i) (requiring motion to reopen be
filed no later than 90 days after the final administrative
decision); Rashid v. Mukasey, 533 F.3d 127, 130 (2d Cir. 2008)
(“[I]neffective assistance of counsel can...afford an alien
additional time beyond the limitations period for a motion to
reopen and relieve a petitioner from the numerical bar.”).
To qualify for equitable tolling—i.e., additional time beyond
the ninety-day statutory limitation period to file a motion
to reopen—an individual must first “show that [their]
counsel’s performance was so ineffective that it impinged
upon the fundamental fairness of the hearing in violation of
the fifth amendment due process clause,” and second, they
must “demonstrate that [they have] exercised due diligence in
pursuing [their claim].” Rashid, 533 F.3d at 130-31 (cleaned
up).
In addition, an individual pursuing a claim for ineffective
assistance of counsel in relation to their representation in
5
1 v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998) (“Issues not
2 sufficiently argued in the briefs are considered waived and
3 normally will not be addressed on appeal.”).
4 For the foregoing reasons, the petition for review is
5 DENIED. All pending motions and applications are DENIED and
6 stays VACATED.
7 FOR THE COURT:
8 Catherine O’Hagan Wolfe,
9 Clerk of Court
10
removal proceedings must comply with certain procedures laid
out in Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988).
Specifically, they must file the following with the BIA: “(1)
an affidavit setting forth in detail the agreement with former
counsel concerning what action would be taken and what counsel
did or did not represent in this regard; (2) proof that the
alien notified former counsel of the allegations of
ineffective assistance and allowed counsel an opportunity to
respond; and (3) if a violation of ethical or legal
responsibilities is claimed, a statement as to whether the
alien filed a complaint with any disciplinary authority
regarding counsel’s conduct and, if a complaint was not filed,
an explanation for not doing so.” Twum v. INS, 411 F.3d 54,
59 (2d Cir. 2005).
6