Carrillo v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 6, 2024
• Docket: 22-1536
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 6 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

YENNY CARRILLO, No. 22-1536 Agency No. Petitioner, A097-886-193 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted March 4, 2024** Pasadena, California

Before: CLIFTON, H.A. THOMAS, and DESAI, Circuit Judges.

Yenny Carrillo petitions for review of a Board of Immigration Appeals

(“BIA”) decision denying her third motion to reopen and reissue on the grounds

that ineffective assistance of counsel prevented her from timely appealing the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). BIA’s December 2020 order denying her second motion to reopen based on

changed country conditions. We have jurisdiction under 8 U.S.C. § 1252. We deny

the petition.

We review the denial of a motion to reopen for abuse of discretion, Perez-

Portillo v. Garland, 56 F.4th 788, 792 (9th Cir. 2022). “Questions of law,

including claims of due process violations due to ineffective assistance, we review

de novo.” Mohammed v. Gonzales, 400 F.3d 785, 791–92 (9th Cir. 2005). To

establish prejudice, the petitioner must show that counsel’s assistance was “so

inadequate that it may have affected the outcome of the proceedings.” Correa-

Rivera v. Holder, 706 F.3d 1128, 1133 (9th Cir. 2013) (internal quotations

omitted). Prejudice is presumed when a petitioner is “prevented from filing an

appeal in an immigration proceeding due to counsel’s error,” but that presumption

is rebuttable if the petitioner does not show “plausible grounds for relief.”

Dearinger ex rel. Volkova v. Reno, 232 F.3d 1042, 1045–46 (9th Cir. 2000).

Even assuming, as the BIA did, that Carrillo’s counsel was ineffective, her

motion to reopen and reissue fails to state any plausible grounds that may have

entitled her to relief. In her motion to reopen, Carrillo argued that her daughter’s

entry into adolescence made her an “easy target” for sexual violence in Colombia

and constituted a “changed circumstance[] in country conditions.” The BIA

concluded in its December 2020 order that this argument did “not establish[] a

2 22-1536 prima facie case for the relief sought,” and Carrillo fails to establish that a different

outcome would have been reached even with the assistance of competent counsel.

The BIA thus did not err in finding that Carrillo did not establish prejudice

resulting from counsel’s alleged misconduct. See id.

DENIED.

3 22-1536