Eber Portillo-Hercules v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 8 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EBER ISAI PORTILLO-HERCULES, No. 18-72344
Petitioner, Agency No. A200-901-757
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted April 14, 2021
San Francisco, California
Before: SCHROEDER, RAWLINSON, and BADE, Circuit Judges.
Eber Isai Portillo-Hercules, a citizen and native of El Salvador, petitions for
review of the Board of Immigration Appeals’ (“BIA”) denial of his motion to
reopen his removal proceedings. We have jurisdiction pursuant to 8 U.S.C.
§ 1252, and we deny the petition.
1. Portillo-Hercules asserts the BIA erred in denying his motion to
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
reopen his removal proceedings for ineffective assistance of counsel as untimely.
The BIA applied the correct legal standard and did not abuse its discretion in
concluding that Portillo-Hercules is not entitled to equitable tolling because the
record supports that he failed to show he acted with due diligence. See Avagyan v.
Holder, 646 F.3d 672, 678–79 (9th Cir. 2011).
There is no evidence that Portillo-Hercules investigated his prior attorneys’
performance after he had reason to suspect that they performed deficiently when he
decided he needed a new attorney once the BIA denied his appeal in January 2013.
See id. at 678–81. The record supports the BIA’s determination that Portillo-
Hercules did not demonstrate that he has cognitive difficulties that prevented him
from recognizing his prior attorneys’ deficient performance. Not only did Portillo-
Hercules promptly retain a new attorney about a month after the BIA denied his
appeal, but he also brought potentially relevant evidence to his prior attorney’s
attention on his own initiative. These actions support the BIA’s conclusion that
Portillo-Hercules was able to understand the BIA’s decision denying his appeal,
and thus, his duty to investigate began when he learned the BIA denied his appeal.
See id. at 680–81. Therefore, the BIA did not err in concluding that Portillo-
Hercules failed to establish he is entitled to equitable tolling. See id.
2. To the extent that Portillo-Hercules suggests that the BIA failed to
review affidavits and other evidence relating to his cognitive difficulties, we
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presume that the BIA reviewed all the evidence. Fernandez v. Gonzales, 439 F.3d
592, 603 (9th Cir. 2006). Moreover, the affidavits are cumulative of the objective
medical evidence indicating a head injury causing memory problems, an inability
to effectively communicate, and hearing impairment. The BIA expressly
considered that evidence but nevertheless denied equitable tolling on the basis of
the evidence that he “understood the import of the [BIA’s] decision and
subsequently consulted with attorneys regarding his legal options.” The record
supports that conclusion.
3. The BIA did not abuse its discretion in denying Portillo-Hercules’
motion to reopen based on changed country conditions. See Ramirez-Munoz v.
Lynch, 816 F.3d 1226, 1229–30 (9th Cir. 2016). To prevail, Portillo-Hercules had
to offer new and material evidence that establishes prima facie eligibility to the
relief sought. See Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010).
In support of his claims to asylum, withholding of removal, and relief under
the Convention Against Torture (“CAT”), Portillo-Hercules offered new evidence
of increased crime in El Salvador and that gang members threatened his wife and
son and killed his brother. However, only speculation supports that gang members
targeted Portillo-Hercules’ wife, son, and brother for their ties to the Portillo
family. See Maroufi v. I.N.S., 772 F.2d 597, 599–600 (9th Cir. 1985). Indeed, the
gang members’ threats against his wife and son began only after the son refused to
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join their gang. Thus, Portillo-Hercules showed—at most—that his wife, son, and
brother were victims of seemingly random, indiscriminate crime, which does not
support entitlement to any relief sought. See Delgado-Ortiz v. Holder, 600 F.3d
1148, 1151–52 (9th Cir. 2010) (per curiam). Further, the BIA did not err in
concluding that the evidence of increased crime is not material to Portillo-
Hercules’ claims because it does not support a showing of persecution for asylum
or withholding of removal and is not particularized for CAT relief. See Ramirez-
Munoz, 816 F.3d at 1229–30; Najmabadi, 597 F.3d at 990. The BIA did not err in
finding Portillo-Hercules failed to establish changed country conditions.
PETITION DENIED.
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