Yahuitl v. Barr ( 2020 )

18-3025
Yahuitl v. Barr
BIA
A073 579 579
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 November, two thousand twenty.
5
6 PRESENT:
7 DENNY CHIN,
8 JOSEPH F. BIANCO,
9 WILLIAM J. NARDINI,
10 Circuit Judges.
11 _____________________________________
12
13 PETRA YAHUITL,
14 Petitioner,
15
16 v. 18-3025
17 NAC
18 WILLIAM P. BARR, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Robert Cini, Esq., Howard
24 Rosengarten, P.C., New York, NY.
25
26 FOR RESPONDENT: Jeffrey Bossert Clark, Acting
27 Assistant Attorney General; Erica
28 B. Miles , Senior Litigation
1 Counsel; Craig A. Newell, Jr.,
2 Trial Attorney, Office of
3 Immigration Litigation, United
4 States Department of Justice,
5 Washington, DC.
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is DENIED.
10 Petitioner Petra Yahuitl, a native and citizen of Mexico,
11 seeks review of a September 18, 2018 decision of the BIA
12 denying her motion to reopen. In re Petra Yahuitl, No. A073
13 579 579 (B.I.A. Sept. 18, 2018). We assume the parties’
14 familiarity with the underlying facts and procedural history.
15 We review the agency’s denial of a motion to reopen for
16 abuse of discretion. See Jian Hui Shao v. Mukasey, 546 F.3d
17 138, 168–69 (2d Cir. 2008). It is undisputed that Yahuitl’s
18 motion to reopen was number barred and untimely because it
19 was her second motion and she filed it twenty years after her
20 removal order and sixteen years after the BIA affirmed an
21 immigration judge’s denial of her first motion to reopen in
22 2002. See 8 U.S.C. § 1229a(c)(7)(A), (C)(i);
23 8 C.F.R. § 1003.2(c)(2). Although the time and number
24 limitations may be excused upon a showing of ineffective
2
1 assistance of counsel, Rashid v. Mukasey, 533 F.3d 127, 130–
2 31 (2d Cir. 2008), to warrant tolling, Yahuitl had to
3 demonstrate that she “exercised due diligence in pursuing the
4 case during the period [she] seeks to toll,” Iavorski v. U.S.
5 I.N.S., 232 F.3d 124, 135 (2d Cir. 2000).
6 The BIA did not err in declining to reopen based on
7 ineffective assistance of counsel. To satisfy the diligence
8 requirement, a movant must “exercise due diligence both
9 before and after [s]he has or should have discovered [the]
10 ineffective assistance.” Rashid, 533 F.3d at 132. “This
11 includes both the period of time before the ineffective
12 assistance of counsel was or should have been discovered and
13 the period from that point until the motion to reopen is
14 filed.” Id. The BIA affirmed the immigration judge’s denial
15 of Yahuitl’s first motion to reopen in 2002, and she stated
16 that she kept in contact with her representative, Reverend
17 Robert Vitaglione, “throughout the process.” Certified
18 Administrative Record (“CAR”) at 39. She has been under an
19 Immigration and Customs Enforcement order of supervision
20 “since at least 2012,” and an attorney helped her with an
21 application for deferred action in 2013. CAR at 304, 607.
3
1 Yahuitl did not detail any efforts to pursue a claim
2 against Reverend Vitaglione or to reopen from 2002 until she
3 filed her motion to reopen in 2018. Though Yahuitl states
4 that she was not aware that the reverend lost his
5 accreditation until her current attorney told her (presumably
6 in 2018), she was at least aware in 2012 that she had lost
7 her appeal of her motion to reopen and had a removal order
8 because she was under an order of supervision. Given the
9 lack of evidence that she attempted to investigate her status
10 between 2002 and 2012 or 2013, and her failure to move to
11 reopen until 2018 after being placed under an order of
12 supervision in 2012, the BIA did not err in finding that she
13 failed to establish due diligence throughout the period she
14 sought to toll. See Jian Hua Wang v. B.I.A., 508 F.3d 710,
15 715 (2d Cir. 2007) (explaining that no delay is per se
16 unreasonable, but citing several cases where “a petitioner
17 who wait[ed] two years or longer to take steps to reopen . . .
18 failed to demonstrate due diligence”).
19 Finally, even absent the denial of the motion as untimely
20 and number barred, the agency did not abuse its discretion in
21 declining to reopen because Yahuitl failed to demonstrate
4
1 prima facie eligibility for asylum. See Poradisova v.
2 Gonzales, 420 F.3d 70, 78 (2d Cir. 2005). To demonstrate
3 eligibility for asylum, “the applicant must establish that
4 race, religion, nationality, membership in a particular
5 social group, or political opinion was or will be at least
6 one central reason for persecuting the applicant.”
7 8 U.S.C. § 1158(b)(1)(B)(i). Yahuitl asserted that she
8 feared harm in Mexico because her husband suffered an assault
9 by unidentified individuals and because gangs will perceive
10 her to be wealthy given her length of residence in the United
11 States. General crime and criminal acts for economic gain
12 are not grounds for asylum. See Ucelo-Gomez v. Mukasey,
13 509 F.3d 70, 73–74 (2d Cir. 2007) (holding that harm purely
14 motivated by wealth is not persecution); Melgar de Torres v.
15 Reno, 191 F.3d 307, 314 (2d Cir. 1999) (harm resulting from
16 “general crime conditions” does not constitute persecution on
17 account of a protected ground).
18 In sum, the BIA did not abuse its discretion in denying
19 reopening because Yahuitl did not exercise due diligence in
20 pursuing her ineffective assistance of counsel claim or
21 demonstrate her prima facie eligibility for asylum.
5
1 See 8 U.S.C. § 1229a(c)(7)(A), (C)(i); Rashid, 533 F.3d at
2 132–33; Poradisova, 420 F.3d at 78.
3 For the foregoing reasons, the petition for review is
4 DENIED. All pending motions and applications are DENIED and
5 stays VACATED.
6 FOR THE COURT:
7 Catherine O’Hagan Wolfe,
8 Clerk of Court
6