Jose Aguilar Guadamuz v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 25, 2020
• Docket: 10-73329
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 25 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOSE MARTIN AGUILAR GUADAMUZ, No. 10-73329 12-71103 Petitioner, Agency No. A078-344-769 v.

WILLIAM P. BARR, Attorney General, MEMORANDUM*

Respondent.

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

Argued and Submitted February 5, 2020 San Francisco, California

Before: PAEZ, BEA, and FRIEDLAND, Circuit Judges.

Petitioner-Appellant Jose Aguilar Guadamuz, a native and citizen of

Nicaragua, petitions for review of decisions by the Board of Immigration Appeals

(“BIA”): (1) affirming an Immigration Judge’s (“IJ”) denial of his petition for

withholding of removal, and (2) denying Aguilar Guadamuz’s motion to reopen

proceedings on the basis of ineffective assistance of counsel and changed country

conditions.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. We review the agency’s factual findings as to withholding of removal for

substantial evidence, Gu v. Gonzales, 454 F.3d 1014, 1018 (9th Cir. 2006), and the

BIA’s denial of Aguilar Guadamuz’s motion to reopen, including its determination

whether the motion was timely filed, for abuse of discretion, Singh v. Gonzales,

491 F.3d 1090, 1095-97 (9th Cir. 2007). Applying these standards, we deny the

petition for review with respect to Aguilar Guadamuz’s claim for withholding, but

grant the petition with respect to his motion to reopen, and we remand for further

proceedings.

1. Substantial evidence supports the agency’s denial of withholding of

removal. Even if Aguilar Guadamuz were entitled to a presumption of persecution

based on his treatment in Nicaragua following the 1979 revolution, substantial

evidence supports the agency’s determination that, in light of a “fundamental

change in circumstances” in Nicaragua in the decades since 1979, the Government

successfully rebutted that presumption. 8 C.F.R. § 1208.16(b)(1)(i)(A).1

2. The BIA abused its discretion in denying Aguilar Guadamuz’s motion to

reopen, which asserted that his initial counsel provided ineffective assistance of

counsel. The BIA’s determination that Aguilar Guadamuz was not prejudiced by

1 To the extent Aguilar Guadamuz petitions for review of the agency’s denial of his claim for relief under the Convention Against Torture, we lack jurisdiction to consider that issue because he failed to raise it in his brief to the BIA. See 8 U.S.C. § 1252(d)(1); Alvarado v. Holder, 759 F.3d 1121, 1126 n.4, 1127 (9th Cir. 2014).

2 his counsel’s failure to introduce evidence that his mother had experienced recent

threats and harassment in Nicaragua from groups affiliated with the Sandinistas

was “arbitrary, irrational, or contrary to law.” Bhasin v. Gonzales, 423 F.3d 977,

987 (9th Cir. 2005) (quoting Singh v. INS, 295 F.3d 1037, 1039 (9th Cir. 2002)).2

The BIA stated that there was “no indication” that such testimony “would have

provided information different from that which [Aguilar Guadamuz] was able to

offer at his hearing.” But this testimony would have differed materially from the

evidence of minor and decades-old incidents Aguilar Guadamuz in fact presented,

and it would have provided the missing nexus between Aguilar Guadamuz’s fear

of future persecution and his family’s political disagreements with the Sandinistas.

Counsel’s failure to present such testimony therefore “may have affected the

outcome of the proceedings.” Correa-Rivera v. Holder, 706 F.3d 1128, 1133 (9th

Cir. 2013) (quoting Ortiz v. INS, 179 F.3d 1148, 1153 (9th Cir. 1999)).3

PETITION FOR REVIEW DENIED in part, DISMISSED in part, and

GRANTED in part; REMANDED.

2 Although the BIA expressed skepticism about the letters describing these incidents, the accounts were not necessarily inconsistent with one another, and the BIA was obligated to accept as true the corresponding allegations in Aguilar Guadamuz’s reopening declarations unless they were “inherently unbelievable.” Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010). 3 Because we conclude that the BIA abused its discretion in this respect, we need not address Aguilar Guadamuz’s arguments that he was entitled to reopening based on other theories of ineffective assistance of counsel, or that he was entitled to reopening based on changed country conditions.