16‐4284 Pillco v. Sessions
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 COURTʹS 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 ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second 2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in 3 the City of New York, on the 20th day of December, two thousand seventeen. 4 5 PRESENT: REENA RAGGI, 6 PETER W. HALL, 7 DENNY CHIN, 8 Circuit Judges. 9 ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x 10 11 GUILLERMO TEODORO PILLCO, AKA Guillermo 12 Teodoro Pillco Arias, 13 Petitioner, 14 15 v. 16‐4284 16 17 JEFFERSON B. SESSIONS III, United States 18 Attorney General, 19 Respondent. 20 21 ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x 22 23 FOR PETITIONER: Guillermo Teodoro Pillco, pro se, Kearny, New 24 Jersey.
1 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy Assistant 2 Attorney General; Jessica E. Burns, Senior 3 Litigation Counsel; Regan Hildebrand, Senior 4 Litigation Counsel, Office of Immigration 5 Litigation, United States Department of Justice, 6 Washington, D.C. 7 8 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
9 ADJUDGED, AND DECREED that petitionerʹs motions to proceed in forma pauperis 10 (ʺIFPʺ), for appointment of counsel, and for a stay of removal proceedings are DENIED. 11 Petitioner Guillermo Teodoro Pillco, a native and citizen of Ecuador, seeks 12 IFP status, appointment of counsel, and a stay of removal in connection with his 13 petition for review of a decision of the Board of Immigration Appeals (ʺBIAʺ) denying 14 his motion to reopen. See In re Guillermo Teodoro Pillco, No. A094 880 165 (B.I.A. Dec. 14, 15 2016). We assume the partiesʹ familiarity with the underlying facts and procedural 16 history in this case. 17 Pillco entered the United States without authorization in 2002 and was 18 placed in removal proceedings in 2007. He applied for asylum and related relief based 19 on his fear of the Ecuadorian thieves who had stolen cattle from his familyʹs farm, 20 assaulted his grandmother, and threatened to kill him if he returned to Ecuador. In 21 2011, the immigration judge (ʺIJʺ) denied his applications and ordered him removed to 22 Ecuador after concluding that he had established neither a nexus to a protected ground 23 nor a likelihood of torture by or with the consent or acquiescence of the Ecuadorian 24 government. The BIA affirmed the IJʹs decision in 2013.
1 In 2016, Pillco moved to reopen the BIA proceedings based on a new set of 2 threats from Enrique Saltos, a man who allegedly attributes his criminal conviction to 3 Pillcoʹs purported cooperation with U.S. law enforcement. Pillco claims that Saltos 4 attacked his family members in Ecuador and threatened to kill them if he did not return 5 to Ecuador and pay Saltos for the losses that Saltos suffered while in prison. On 6 December 14, 2016, the BIA denied Pillcoʹs motion as untimely filed, concluding that 7 Pillco had not identified materially changed circumstances to excuse the untimeliness, 8 and held further that his arguments lacked merit because there was no nexus to a 9 protected ground and no likelihood of torture by or with the consent or acquiescence of 10 the Ecuadorian government. Pillco petitioned, pro se, for review of the BIAʹs denial and 11 now moves for IFP status, appointment of counsel, and a stay of removal. 12 A. IFP Status 13 Under 28 U.S.C. § 1915, a court may allow a petition to proceed without 14 prepayment of fees by an indigent litigant who submits an affidavit of his financial 15 assets and inability to pay the fees. 28 U.S.C. § 1915(a)(1). The court, however, ʺshall 16 dismiss the case at any time if the court determines that . . . the action or appeal is 17 frivolous.ʺ 28 U.S.C. § 1915(e)(2)(B)(i). An action is frivolous in this context if it has no 18 arguable basis in law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). 19 We review the BIAʹs denial of a motion to reopen for abuse of discretion 20 and are mindful that such motions are ʺdisfavored.ʺ Ali v. Gonzales, 448 F.3d 515, 517
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1 (2d Cir. 2006) (per curiam) (quoting I.N.S. v. Doherty, 502 U.S. 314, 323 (1992)). The BIA 2 ʺordinarily will not grant such a motion unless the movant has met the ʹheavy burdenʹ 3 of demonstrating a likelihood that the new evidence presented would alter the result in 4 the case.ʺ Li Yong Cao v. U.S. Dep’t of Justice, 421 F.3d 149, 156 (2d Cir. 2005) (quoting 5 Matter of Coelho, 20 I. & N. Dec. 464, 473 (B.I.A. 1992)). The BIA abuses its discretion if 6 its ʺdecision provides no rational explanation, inexplicably departs from established 7 policies, is devoid of any reasoning, or contains only summary or conclusory 8 statements.ʺ Kaur v. Bd. of Immigration Appeals, 413 F.3d 232, 233 (2d Cir. 2005) (per 9 curiam) (quoting Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d Cir. 2001)). 10 We conclude that the BIA did not abuse its discretion in denying Pillcoʹs 11 motion to reopen. First, we agree with the BIA that Pillcoʹs motion to reopen is 12 untimely because (1) he filed it more than 90 days after the BIAʹs final decision in 2013 13 and (2) he has not identified any materially changed conditions in Ecuador that would 14 qualify him for an exception to the 90‐day deadline. See 8 U.S.C. §§ 1229a(c)(7)(C)(i)‐(ii). 15 His reliance on a 2015 report by the U.S. Department of State on human rights 16 violations in Ecuador is misplaced because the report, which describes the difficulties 17 generally facing Ecuadorian law enforcement with respect to human rights violations, is 18 not relevant or material to the purported changes in conditions in Pillcoʹs personal life. 19 Second, even if Pillcoʹs motion were timely filed, there is no basis for 20 Pillcoʹs claims for asylum and withholding of removal because his recent allegations are
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1 based on Saltosʹs private attempts to collect a debt. A fear for safety based on private 2 attempts ‐‐ by Saltos ‐‐ to collect a debt is not fear for safety based on persecution on a 3 protected ground, and therefore it is not a basis for asylum. See 8 U.S.C. § 1101(a)(42) 4 (identifying race, religion, nationality, membership in a particular social group, and 5 political opinion as protected grounds); Saleh v. U.S. Depʹt of Justice, 962 F.2d 234, 240 6 (2d Cir. 1992) (rejecting the financial inability to ʺpay[] blood money to the victimʹs 7 familyʺ as the defining characteristic of a social group facing persecution on a protected 8 ground (internal quotation marks omitted)); see also Jan v. Holder, 576 F.3d 455, 458‐59 9 (7th Cir. 2009) (per curiam) (determining that ʺindebtednessʺ was not an immutable 10 characteristic that could define a persecuted social group); Romilus v. Ashcroft, 385 F.3d 11 1, 6 (1st Cir. 2004) (ʺThe INA is not intended to protect aliens from violence based on 12 personal animosity.ʺ); Florez‐de Solis v. I.N.S., 796 F.2d 330, 335 (9th Cir. 1986) (holding 13 that petitioner, the target of private attempts to collect debt, did not suffer from political 14 persecution). Here, Pillco has no colorable claim for asylum or withholding of removal. 15 See Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004) (ʺ[A]n alien who fails to 16 establish his entitlement to asylum necessarily fails to establish his entitlement to 17 withholding of removal.ʺ). 18 Third, there is also no merit to Pillcoʹs claim under the United Nations 19 Convention Against Torture (ʺCATʺ) because, as the BIA held, he has not sufficiently 20 asserted the inability or unwillingness of the Ecuadorian government to protect him
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1 from the alleged harm. See Khouzam v. Ashcroft, 361 F.3d 161, 170 (2d Cir. 2004) (ʺThe 2 CAT itself requires that torture be inflicted by or at the instigation of or with the consent 3 or acquiescence of a public official or other person acting in an official capacity.ʺ 4 (internal quotation marks omitted)). Pillco asserts that local law enforcement remained 5 willfully blind to Saltosʹs threats and assaults and, despite a complaint submitted by 6 Pillcoʹs relatives in 2011, did nothing to investigate or prosecute Saltos. This assertion 7 is, however, contradicted by Pillcoʹs own evidence, which shows that the police began 8 investigating Saltos and collecting evidence shortly after the complaint was filed, and 9 that the prosecutor investigated and assessed the strength of the evidence before closing 10 the case. 11 Because the BIA properly denied Pillcoʹs motion to reopen, we conclude 12 that Pillcoʹs petition for review of the BIA decision lacks an arguable basis in law or fact 13 and is therefore frivolous. See Neitzke, 490 U.S. at 325. Accordingly, his petition is 14 dismissed under § 1915(e)(2)(B)(i), and his motion to proceed IFP is denied as moot. See 15 Mills v. Fischer, 645 F.3d 176, 178 (2d Cir. 2011) (ʺ[A] litigant barred from proceeding 16 under § 1915 is likewise ineligible for the benefits provided therein.ʺ). 17 B. Remaining Motions 18 We need not address the merits of Pillcoʹs remaining motions in light of 19 the dismissal of his petition. His motions for appointment of counsel and a stay of 20 removal are also denied as moot.
1 Accordingly, Pillcoʹs motions for IFP status, appointment of counsel, and a 2 stay of removal are DENIED and his petition is DISMISSED.
3 FOR THE COURT: 4 Catherine OʹHagan Wolfe, Clerk