Pinheiro v. Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 17 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LIVIA DE DOS SANTOS PINHEIRO, No. 21-765
Petitioner, Agency No. A073-944-789
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 8, 2023
San Francisco, California
Before: FRIEDLAND, R. NELSON, Circuit Judges, CARDONE, District
Judge**.
Petitioner Livia de Dos Santos Pinheiro, a native and citizen of Brazil,
petitions for review of an order of the Board of Immigration Appeals (BIA)
denying her motion to reopen proceedings regarding her application for deferral
of removal under the Convention Against Torture (CAT). We grant the
petition.
*
This disposition is not appropriate for publication and is not
precedent except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Kathleen Cardone, United States District Judge for
the Western District of Texas, sitting by designation.
1. The BIA abused its discretion in denying Pinheiro’s motion to reopen her
CAT claim based on changed country conditions. Pinheiro had explained in her
motion to reopen that she feared torture based on the risks posed by being an
LGBT individual and a woman. Despite her explicit contentions that “gender
based violence against women” had increased in Brazil, the BIA held that “her
claim that she will be tortured is not premised on her gender” and then
disregarded evidence in the record discussing violence against women in Brazil.
The BIA ultimately rejected Pinheiro’s changed country conditions argument on
the ground that Pinheiro did not establish prima facie eligibility for relief under
CAT.
When considering a CAT claim, however, the agency is required to
consider all of the country conditions evidence and whether all of the
petitioner’s characteristics cumulatively give rise to a probable likelihood that
petitioner would be subject to torture. See Cole v. Holder, 659 F.3d 762, 770,
775 (9th Cir. 2011) (explaining that “all evidence relevant to the possibility of
future torture shall be considered” (quoting 8 C.F.R. § 1208.16(c)(3)) when
assessing the “aggregate risk that [the petitioner] would face”); see also
Velasquez-Samayoa v. Garland, 49 F.4th 1149, 1154-56 (9th Cir. 2022).
Because the agency failed to consider how the evidence of violence against
women in Brazil would contribute to Pinheiro’s total risk of torture for purposes
of determining her prima facie eligibility for CAT relief, we remand for the
agency to properly evaluate all of the country conditions evidence in the first
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instance. See Kamalthas v. INS, 251 F.3d 1279, 1284 (9th Cir. 2001)
(remanding CAT claim for further consideration where the BIA denied a motion
to reopen based on changed country conditions without considering all of the
relevant country conditions in the record).
2. The BIA did not abuse its discretion in rejecting the ineffective assistance
of counsel claim Pinheiro asserted as a basis for reopening. Pinheiro argued
that prior counsel’s failure to submit a declaration, affidavits, or other evidence
related to her sexual orientation and mental illness constituted ineffective
assistance of counsel. Even assuming Pinheiro satisfied the Matter of Lozada
requirements, the BIA reasonably concluded that counsel was not deficient
when she strategically chose to invest her efforts in other avenues of relief for
Pinheiro rather than produce additional evidence in support of a risk of torture.
See, e.g., Hernandez-Ortiz v. Garland, 32 F.4th 794, 802-03 (9th Cir. 2022)
(explaining that tactical decisions, such as not raising an argument that counsel
determined lacks merit, do not constitute ineffective assistance under the Fifth
Amendment); Babbitt v. Calderon, 151 F.3d 1170, 1174 (9th Cir. 1998)
(holding that criminal defense counsel was not ineffective and explaining that
“counsel could reasonably have decided to utilize his limited resources in
investigating other avenues rather than simply bolstering this one”).1
1
See also Torres-Chavez v. Holder, 567 F.3d 1096, 1100 (9th Cir. 2009)
(explaining that because immigrants in removal proceedings “shoulder a heavier
burden of proof in establishing ineffective assistance of counsel under the Fifth
Amendment than under the Sixth Amendment, . . . if [the petitioner]’s counsel
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As to counsel’s failure to file a brief in the appeal to the BIA, the BIA
correctly observed that the absence of a brief does not always cause prejudice,
and it did not do so here. Pinheiro argues that prejudice should be presumed
from the failure to file a brief. But she relies only on cases in which the BIA
dismissed the appeal due to counsel’s error. See, e.g., Siong v. INS, 376 F.3d
1030, 1037-38 (9th Cir. 2004) (BIA dismissed appeal for untimeliness); Rojas-
Garcia v. Ashcroft, 339 F.3d 814, 826 (9th Cir. 2003) (BIA dismissed appeal for
failure to file a brief). Here, by contrast, the BIA considered Pinheiro’s claims
and rejected them on their merits. Pinheiro has also not pointed to any
argument a brief could have made that the BIA did not consider.
Because the failure to produce a declaration or additional evidence did
not constitute deficient performance and because no prejudice resulted from the
failure to file a brief, Pinheiro’s motion to reopen based on ineffective
assistance of counsel fails. See Mohammed v. Gonzales, 400 F.3d 785, 793-94
(9th Cir. 2005) (requiring a showing of deficient performance and prejudice to
establish a Fifth Amendment ineffective assistance of counsel violation in the
deportation context).
Petition GRANTED.
was effective [under Strickland v. Washington, 466 U.S. 668 (1984)] for Sixth
Amendment purposes” then “there is no violation of the [immigrant]’s Fifth
Amendment right to due process” (quotation marks omitted)).
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