Panfilo Bolanos Silva v. Attorney General United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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Nos. 14-2995 & 14-4653
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PANFILO BOLANOS SILVA,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
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On Petition for Review of a Final Order
of the Board of Immigration Appeals
Immigration Judge: Honorable Alberto J. Riefkohl
(No. A088-083-668)
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Submitted Under Third Circuit LAR 34.1(a)
November 19, 2015
Before: AMBRO, HARDIMAN, and NYGAARD, Circuit Judges
(Opinion filed: January 8, 2016)
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OPINION*
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*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute
binding precedent.
AMBRO, Circuit Judge
In this consolidated appeal, Panfilo Bolanos Silva, a native and citizen of Mexico,
petitions for review of two decisions by the Board of Immigration Appeals (“BIA”). The
first denied his first motion to reopen removal proceedings and his motion to remand on
the basis of ineffective assistance of counsel.1 The second denied his motion to
reconsider the BIA’s initial decision and his second motion to reopen removal
proceedings. For the reasons that follow, we deny his petitions.
I.
In 2010, the Department of Homeland Security filed a Notice to Appear, charging
that Bolanos Silva was subject to removal from the United States. He was represented by
attorney Stephen Traylor, who conceded that Bolanos Silva was removable and requested
a discretionary grant of voluntary departure under 8 U.S.C. § 1229c(a). Traylor did not
request any other form of relief from removal. The Immigration Judge (“IJ”) granted the
request, and Bolanos Silva waived his right to appeal the IJ’s decision.
Before the voluntary departure period expired, Bolanos Silva, with attorney John
A. Nicelli now acting as his counsel, moved to reopen removal proceedings so that he
might apply for asylum-related relief. He claimed, among other things, that he feared
returning to Mexico because he anticipated that he and his mentally disabled daughter
would face difficulties, including discrimination, ostracism, and possibly even violence.
1
Motions to remand and motions to reopen are “functionally identical,” Fadiga v. Att’y Gen.,
488 F.3d 142, 145 n.5 (3d Cir. 2007) (alterations in original) (quoting Korytnyuk v. Ashcroft, 396
F.3d 272, 282 (3d Cir. 2005)), but for the sake of clarity we refer to Bolanos Silva’s self-styled
“motion to remand” as such.
2
He further claimed that Traylor had provided ineffective assistance because he failed to
advise Bolanos Silva that he had a viable claim for asylum-related relief.
The IJ denied the motion as untimely because it was filed more than 90 days after
his prior decision. He further explained that Bolanos Silva presented neither material
evidence of changed country conditions to excuse his untimely filing, see 8 U.S.C.
§ 1229a(c)(7)(C)(ii), nor previously unavailable evidence to support his claim for relief,
see 8 C.F.R. § 1003.23(b)(3). The IJ also noted that Bolanos Silva’s ineffective
assistance claim could not succeed because he presented no evidence of attempts to
comply with the procedural requirements of In re Lozada, 19 I. & N. Dec. 637 (BIA
1988).
Bolanos Silva timely appealed the IJ’s decision, arguing that the IJ erroneously
failed to consider evidence of changed country conditions. While that appeal was
pending before the BIA, Bolanos Silva, now with attorney Visuvanathan Rudrakumaran
acting as his counsel, moved to remand on two grounds: (1) that Traylor rendered
ineffective assistance by failing to inform Bolanos Silva of his viable claims for asylum-
related relief; and (2) that Nicelli rendered ineffective assistance by failing to comply
with the procedural requirements of In re Lozada.
The BIA dismissed Bolanos Silva’s appeal and denied his motion to remand. The
BIA affirmed the IJ’s conclusion that Bolanos Silva presented neither material evidence
of changed country conditions nor previously unavailable evidence to support his claim
for relief. The BIA also explained that Bolanos Silva’s ineffective assistance claims
could not succeed because he failed to comply with the procedural requirements of In re
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Lozada with respect to both his initial ineffective assistance claim involving Traylor as
well as his new ineffective assistance claim involving Nicelli. Bolanos Silva then filed a
petition for review of the BIA’s decision.
After filing his petition for review, Bolanos Silva filed two more motions with the
BIA. The first was a motion to reconsider it’s decision, arguing that, in his case,
compliance with the procedural requirements of In re Lozada was neither required nor
possible. The second was another motion to reopen based on the ineffective assistance
provided by Traylor, Nicelli, and Rudrakumaran. In an attempt to cure the deficiencies
identified in the BIA’s prior decision, the second motion documented Bolanos Silva’s
efforts to satisfy the procedural requirements of In re Lozada.
The BIA denied the motions. It found that Bolanos Silva satisfied the procedural
requirements of In re Lozada, but explained that his ineffective assistance claim could not
succeed because he failed to demonstrate that he was prejudiced by his counsel’s
ineffective assistance. Based on the record before it, the BIA concluded that, even if
Bolanos Silva might face discrimination and ostracism if he returned to Mexico, there
was no evidence he would face persecution or torture. Because Bolanos Silva had to
present evidence relating to persecution or torture to secure relief from removal, the BIA
concluded that there was no reasonable likelihood that the outcome of his removal
proceedings would have been different had counsel helped him apply for asylum-related
relief. Thereafter, Bolanos Silva petitioned for review of that decision from the BIA. His
two petitions for review were consolidated in the matter before us.
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II.
We have jurisdiction under 8 U.S.C. § 1252(a). We review questions of law,
including the BIA’s “determination of an underlying procedural due process claim,” de
novo. Fadiga v. Att’y Gen., 488 F.3d 142, 153-54 (3d Cir. 2007); Borges v. Gonzales,
402 F.3d 398, 404 (3d Cir. 2005). We review the BIA’s denial of a motion to reopen for
abuse of discretion. Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004). Our review is
“highly deferential.” Id. We review the BIA’s findings of fact “to determine whether
they were supported by substantial evidence” and will only reverse the BIA’s denial of a
motion to reopen if it is “arbitrary, irrational, or contrary to law.” Sevoian v. Ashcroft,
290 F.3d 166, 168, 174 (3d Cir. 2002) (quoting Tipu v. INS, 20 F.3d 580, 582 (3d Cir.
1994)).
III.
“A claim of ineffective assistance of counsel in removal proceedings is cognizable
under the Fifth Amendment—i.e., as a violation of that amendment’s guarantee of due
process.” Fadiga, 488 F.3d at 155. A claim of ineffective assistance, if properly
established, could constitute proper grounds for reopening a removal proceeding. See Xu
Yong Lu v. Ashcroft, 259 F.3d 127, 132 (3d Cir. 2001).
To prevail on his claim for ineffective assistance in this case, Bolanos Silva must
show “(1) that he was prevented from reasonably presenting his case and (2) that
substantial prejudice resulted.” Fadiga, 488 F.3d at 155 (internal quotation marks
omitted). Substantial prejudice here is “a ‘reasonable likelihood that the result would
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have been different if the error[s] . . . had not occurred.’” Id. at 159 (alterations in
original) (quoting United States v. Charleswell, 456 F.3d 347, 362 (3d Cir. 2006)).
The BIA determined that Bolanos Silva did not satisfy the prejudice prong of his
ineffective assistance claim because he failed to prove that he “had viable claims to
asylum and withholding of removal based on being the Mexican parent of a mentally
retarded daughter” or that he had “a viable claim [for protection under the CAT] that he
and his daughter would more likely than not be tortured upon return to Mexico by the
Mexican Government or that the Government would be willfully blind to any torturous
acts which might be committed against them by third parties.” (1 App. 4 (alteration in
original).)
Bolanos Silva’s main argument is that the BIA applied too rigorous a standard of
prejudice in denying his second motion to reopen.2 Citing our decision in Fadiga, in
which we explained that an alien need not show that a different outcome was more likely
than not to prevail on an ineffective assistance claim, 488 F.3d at 160-61, Bolanos Silva
argues that the BIA erroneously required him to demonstrate that he would more likely
than not be persecuted and/or tortured upon return to Mexico. We disagree. The BIA
rightly concluded that Bolanos Silva seeks relief from removal based on fears of
discrimination and ostracism (which do not rise to the level of persecution, see Fatin v.
2
Although Bolanos Silva also petitioned for review of the BIA’s denial of his first motion to
reopen, he waives any claim of error with respect to that motion. (Pet.’s Reply Br. 2 (“Thus the
only issue before this court is whether the BIA’s finding that the petitioner failed to show
prejudice [sic].”).) He has also waived any claim of error with respect to the BIA’s decision on
the issue of changed country conditions. Id. at 1-2. Even if he had not waived those challenges,
he would lose on the merits because the BIA did not abuse its discretion.
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INS, 12 F.3d 1233, 1240 (3d Cir. 1993)), as well as generalized fears of violence in
Mexican mental health institutions (which are not grounds for relief from removal under
the circumstances, see Auguste v. Ridge, 395 F.3d 123, 154 (3d Cir. 2005)). Thus, even if
Bolanos Silva presented sufficient evidence to prove the truth of his assertions, he would
not be entitled to relief.
Bolanos Silva’s reliance on our decision in Fadiga is misplaced because the BIA’s
decision in that case is distinguishable from the BIA’s decision here. In Fadiga, the BIA
denied the alien’s motion to reopen based on its finding that he “failed to demonstrate his
eligibility for relief.” 488 F.3d at 159-60. Here, the BIA denied Bolanos Silva’s second
motion to reopen based on its conclusion that he failed even to state a viable claim for
relief. (1 App. 4.) In other words, the BIA’s decision here was not based on its
conclusion that Bolanos Silva could not prove his case, but rather that, even if he could
prove everything that he claimed, he would not be entitled to relief from removal.
Notwithstanding his conclusory assertions that he would face persecution and/or
torture if he returns to Mexico, Bolanos Silva failed to state a sustainable claim for relief
from removal. In the absence of such a claim, Bolanos Silva cannot demonstrate a
reasonable likelihood that the result of his removal proceedings would have been
different absent counsel’s deficient performance. Counsel’s failure to put Bolanos Silva
on notice of non-sustainable claims for asylum-related relief cannot result in prejudice.
Bolanos Silva also argues that the BIA ignored his evidence and failed to provide
a reasoned decision, but it is not “required to expressly parse each point or discuss each
piece of evidence presented” in order for us to be confident that it has “meaningfully
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considered the evidence and arguments” that he presented, Fei Yan Zhu v. Att’y Gen.,
744 F.3d 268, 272 (3d Cir. 2014). And the BIA’s decision is reasoned enough to permit
our meaningful review, see Miah v. Ashcroft, 346 F.3d 434, 439-40 (3d Cir. 2003). We
agree with the BIA that the arguments and evidence in the record speak to issues of
discrimination and prejudice rather than persecution and/or torture.
* * * * *
We have considered Bolanos Silva’s remaining arguments and find them
unpersuasive. Thus, we deny his petitions for review.
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