21-6542 Castillo Maradiaga v. Garland BIA A095 487 963
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 A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 27th day of October, two thousand twenty-three.
PRESENT: JOSEPH F. BIANCO, WILLIAM J. NARDINI, MYRNA PÉREZ, Circuit Judges. _____________________________________
JAVIER CASTILLO MARADIAGA, Petitioner,
v. 21-6542 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________ FOR PETITIONER: Rebecca R. Press, Esq., UnLocal, New York, NY.
FOR RESPONDENT: Brian M. Boynton, Principal Deputy Assistant Attorney General; Dawen S. Conrad, Senior Litigation Counsel; Rachel P. Berman-Vaporis, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a Board of
Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
DECREED that the petition for review is DENIED.
Petitioner Javier Arnoldo Castillo Maradiaga, a native and citizen of
Honduras, seeks review of a September 29, 2021 decision of the BIA denying his
January 28, 2021 motion to reopen. In re Javier Arnoldo Castillo-Maradiaga, No. A
095 487 963 (B.I.A. Sept. 29, 2021). We assume the parties’ familiarity with the
underlying facts and procedural history.
Our review is limited to the BIA’s September 29, 2021 decision denying
Castillo Maradiaga’s January 28, 2021 motion to reopen. See Nwogu v. Gonzales,
491 F.3d 80, 84 (2d Cir. 2007) (per curiam). We review the BIA’s denial of a motion
to reopen for abuse of discretion. See Singh v. Mukasey, 536 F.3d 149, 153 (2d Cir.
2008). “An abuse of discretion may be found . . . where the Board’s decision
2 provides no rational explanation, inexplicably departs from established policies,
is devoid of any reasoning, or contains only summary or conclusory statements;
that is to say, where the Board has acted in an arbitrary or capricious manner.”
Ke Zhen Zhao v. U.S. Dep’t of Just., 265 F.3d 83, 93 (2d Cir. 2001) (citations omitted).
We review the BIA’s factual findings regarding changed country conditions under
the substantial evidence standard, “which requires that they be supported by
‘reasonable, substantial and probative evidence in the record when considered as
a whole.’” Kone v. Holder, 596 F.3d 141, 146 (2d Cir. 2010) (quoting Iouri v. Ashcroft,
487 F.3d 76, 81 (2d Cir. 2007)). We review claims of ineffective assistance of
counsel de novo. See Esposito v. INS, 987 F.2d 108, 111 (2d Cir. 1993) (per curiam)
(“A reviewing court uses its own judgment as to whether counsel was
effective . . . .”).
A noncitizen may file one motion to reopen, 8 U.S.C. § 1229a(c)(7)(A), and
“[t]he motion to reopen shall state the new facts that will be proven at a hearing to
be held if the motion is granted, and shall be supported by affidavits or other
evidentiary material,” id. § 1229a(c)(7)(B); see also 8 C.F.R. § 1003.2(c)(1), (2). A
motion to reopen ordinarily must be filed within 90 days of a final order of
removal. 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). Castillo Maradiaga
3 does not dispute that, unless an exception applies, his motion is time- and number-
barred. The BIA did not err in concluding that Castillo Maradiaga was not
entitled to equitable tolling due to ineffective assistance of counsel and the BIA did
not abuse its discretion in concluding that he failed to establish material, changed
country conditions since his final order of removal. Accordingly, no exception
applied to the time and number bars on Castillo Maradiaga’s January 28, 2021
motion to reopen.
I. Changed Country Conditions
The time limit on motions to reopen does not apply if the movant applies
for asylum “based on changed country conditions arising in the country of
nationality or the country to which removal has been ordered, if such evidence is
material and was not available and would not have been discovered or presented
at the previous proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R.
§ 1003.2(c)(3)(ii). A movant also must demonstrate “prima facie eligibility for
asylum, which means []he must show a realistic chance that []he will be able to
obtain such relief.” Jian Hui Shao v. Mukasey, 546 F.3d 138, 168 (2d Cir. 2008)
(internal quotation marks and citation omitted). Substantial evidence supports
the BIA’s decision that Castillo Maradiaga did not establish a material change in
4 country conditions that would allow him a realistic possibility of relief.
Castillo Maradiaga argued that conditions had worsened in Honduras since
his removal order became final in 2003 and that he would be persecuted as an
outsider and a proponent of migrant rights. While Castillo Maradiaga does
present some evidence that conditions in Honduras have changed, substantial
evidence supports the BIA’s finding that Castillo Maradiaga did not show that any
potential changes were material because his evidence does not bear on his specific
claim of persecution as an “outsider or migrant rights advocate.” See Tanusantoso
v. Barr, 962 F.3d 694, 698 (2d Cir. 2020) (country conditions evidence must
“materially bear on [petitioner’s] claim” (citation omitted)). The reports that
Mr. Castillo Maradiaga submitted from the Carnegie Endowment for
International Peace and Human Rights Watch do not speak of “outsiders.” The
Inter-American Commission on Human Rights press release and Human Rights
Watch report that he submitted discuss risks for human rights defenders, but focus
on defenders of indigenous, land, and LGBTQ rights, not migrant rights, and on
individuals who fought for such rights in Honduras, not the United States.
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21-6542 Castillo Maradiaga v. Garland BIA A095 487 963
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 A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 27th day of October, two thousand twenty-three.
PRESENT: JOSEPH F. BIANCO, WILLIAM J. NARDINI, MYRNA PÉREZ, Circuit Judges. _____________________________________
JAVIER CASTILLO MARADIAGA, Petitioner,
v. 21-6542 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________ FOR PETITIONER: Rebecca R. Press, Esq., UnLocal, New York, NY.
FOR RESPONDENT: Brian M. Boynton, Principal Deputy Assistant Attorney General; Dawen S. Conrad, Senior Litigation Counsel; Rachel P. Berman-Vaporis, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a Board of
Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
DECREED that the petition for review is DENIED.
Petitioner Javier Arnoldo Castillo Maradiaga, a native and citizen of
Honduras, seeks review of a September 29, 2021 decision of the BIA denying his
January 28, 2021 motion to reopen. In re Javier Arnoldo Castillo-Maradiaga, No. A
095 487 963 (B.I.A. Sept. 29, 2021). We assume the parties’ familiarity with the
underlying facts and procedural history.
Our review is limited to the BIA’s September 29, 2021 decision denying
Castillo Maradiaga’s January 28, 2021 motion to reopen. See Nwogu v. Gonzales,
491 F.3d 80, 84 (2d Cir. 2007) (per curiam). We review the BIA’s denial of a motion
to reopen for abuse of discretion. See Singh v. Mukasey, 536 F.3d 149, 153 (2d Cir.
2008). “An abuse of discretion may be found . . . where the Board’s decision
2 provides no rational explanation, inexplicably departs from established policies,
is devoid of any reasoning, or contains only summary or conclusory statements;
that is to say, where the Board has acted in an arbitrary or capricious manner.”
Ke Zhen Zhao v. U.S. Dep’t of Just., 265 F.3d 83, 93 (2d Cir. 2001) (citations omitted).
We review the BIA’s factual findings regarding changed country conditions under
the substantial evidence standard, “which requires that they be supported by
‘reasonable, substantial and probative evidence in the record when considered as
a whole.’” Kone v. Holder, 596 F.3d 141, 146 (2d Cir. 2010) (quoting Iouri v. Ashcroft,
487 F.3d 76, 81 (2d Cir. 2007)). We review claims of ineffective assistance of
counsel de novo. See Esposito v. INS, 987 F.2d 108, 111 (2d Cir. 1993) (per curiam)
(“A reviewing court uses its own judgment as to whether counsel was
effective . . . .”).
A noncitizen may file one motion to reopen, 8 U.S.C. § 1229a(c)(7)(A), and
“[t]he motion to reopen shall state the new facts that will be proven at a hearing to
be held if the motion is granted, and shall be supported by affidavits or other
evidentiary material,” id. § 1229a(c)(7)(B); see also 8 C.F.R. § 1003.2(c)(1), (2). A
motion to reopen ordinarily must be filed within 90 days of a final order of
removal. 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). Castillo Maradiaga
3 does not dispute that, unless an exception applies, his motion is time- and number-
barred. The BIA did not err in concluding that Castillo Maradiaga was not
entitled to equitable tolling due to ineffective assistance of counsel and the BIA did
not abuse its discretion in concluding that he failed to establish material, changed
country conditions since his final order of removal. Accordingly, no exception
applied to the time and number bars on Castillo Maradiaga’s January 28, 2021
motion to reopen.
I. Changed Country Conditions
The time limit on motions to reopen does not apply if the movant applies
for asylum “based on changed country conditions arising in the country of
nationality or the country to which removal has been ordered, if such evidence is
material and was not available and would not have been discovered or presented
at the previous proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R.
§ 1003.2(c)(3)(ii). A movant also must demonstrate “prima facie eligibility for
asylum, which means []he must show a realistic chance that []he will be able to
obtain such relief.” Jian Hui Shao v. Mukasey, 546 F.3d 138, 168 (2d Cir. 2008)
(internal quotation marks and citation omitted). Substantial evidence supports
the BIA’s decision that Castillo Maradiaga did not establish a material change in
4 country conditions that would allow him a realistic possibility of relief.
Castillo Maradiaga argued that conditions had worsened in Honduras since
his removal order became final in 2003 and that he would be persecuted as an
outsider and a proponent of migrant rights. While Castillo Maradiaga does
present some evidence that conditions in Honduras have changed, substantial
evidence supports the BIA’s finding that Castillo Maradiaga did not show that any
potential changes were material because his evidence does not bear on his specific
claim of persecution as an “outsider or migrant rights advocate.” See Tanusantoso
v. Barr, 962 F.3d 694, 698 (2d Cir. 2020) (country conditions evidence must
“materially bear on [petitioner’s] claim” (citation omitted)). The reports that
Mr. Castillo Maradiaga submitted from the Carnegie Endowment for
International Peace and Human Rights Watch do not speak of “outsiders.” The
Inter-American Commission on Human Rights press release and Human Rights
Watch report that he submitted discuss risks for human rights defenders, but focus
on defenders of indigenous, land, and LGBTQ rights, not migrant rights, and on
individuals who fought for such rights in Honduras, not the United States. 1
1Castillo Maradiaga asserts that the BIA “committed an error of law by presuming that a worsening of conditions cannot support a finding of changed conditions.” Pet. Br. at 29. Such
5 Castillo Maradiaga also did not establish that anyone would identify him as
a human rights advocate, and, consequently, he did not establish eligibility for
relief. News articles describe his arrival in the United States as a child, his long
detention, and rallies led by his sister to secure his release from detention, but do
not identify him as a human rights advocate, and he conceded in a written
statement that it was speculative that he would be considered one. Further, as
the BIA found, his fear of gangs was a generalized fear of crime and did not
constitute a basis for asylum or withholding of removal on a protected ground.
See Quituizaca v. Garland, 52 F.4th 103, 115 (2d Cir. 2022) (requiring more than
general criminal incentives to show a nexus between gang violence and a
protected ground). Accordingly, substantial evidence supports the BIA’s
conclusion that Castillo Maradiaga did not establish a change in conditions
material to the bases for his claims for asylum, withholding of removal, and CAT
relief.
a presumption would have been error. See Poradisova v. Gonzales, 420 F.3d 70, 78 (2d Cir. 2005) (“When an applicant moves to reopen his case based on worsened country conditions, and introduces previously unavailable reports that materially support his original application, the BIA has a duty to consider these reports and issue a reasoned decision based thereon, whether or not these reports are clearly determinative.”). However, the BIA did not make that presumption, instead finding that Castillo Maradiaga’s proffered worsening of conditions was not material. 6 II. Ineffective Assistance of Counsel
Ineffective assistance of counsel can relieve a petitioner from the time and
number bars on a motion to reopen if (1) the petitioner’s “counsel’s performance
was so ineffective that it impinged upon the fundamental fairness of the hearing,”
Rashid v. Mukasey, 533 F.3d 127, 130 (2d Cir. 2008) (alterations adopted) (quoting
Rabiu v. INS, 41 F.3d 879, 882 (2d Cir. 1994)), and (2) the petitioner exercised due
diligence in pursuing his claim, id. at 131. To meet the first prong, the noncitizen
“must allege facts sufficient to show 1) that competent counsel would have acted
otherwise, and 2) that he was prejudiced by his counsel’s performance.” Rabiu,
41 F.3d at 882 (internal quotation marks and citation omitted). And under the
second prong, the noncitizen “’will not be entitled to equitable tolling unless he
can affirmatively demonstrate that he exercised reasonable due diligence’ in
pursuing his claim.” Rashid, 533 F.3d at 131 (quoting Cekic v. INS, 435 F.3d 167,
171 (2d Cir. 2006)).
Castillo Maradiaga challenges only the BIA’s conclusion under the first
prong, but not the second, which is independently dispositive of his argument for
equitable tolling due to ineffective assistance of counsel. See id. at 131 (“‘[B]oth
prongs . . . must be met. Thus, no matter how egregiously ineffective counsel’s
7 assistance may have been, [the noncitizen must] affirmatively demonstrate that he
exercised reasonable due diligence’ in pursuing his claim.” (first alteration in
original) (quoting Cekic, 435 F.3d at 170)). Thus, Castillo Maradiaga failed to
establish—before us or the BIA—that he “pass[ed] with reasonable diligence
through the period [he] seeks to have tolled.” See Iavorski v. INS, 232 F.3d 124, 134
(2d Cir. 2000) (citation omitted).
For the foregoing reasons, the petition for review is DENIED. All pending
motions and applications are DENIED, and all stays are VACATED.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court