Yessica Molina-Ramirez v. Attorney General United States

• Court: Court of Appeals for the Third Circuit
• Decided: October 6, 2023
• Docket: 21-1314
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________

Nos. 21-1314 & 22-3300 ______________

YESSICA FERNANDA MOLINA-RAMIREZ, Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA ______________

On Petition for Review of Orders from the Board of Immigration Appeals (Agency No. A206-627-295) Immigration Judge: Steven A. Morley ______________

Submitted Under Third Circuit L.A.R. 34.1(a) October 5, 2023 ______________

Before: SHWARTZ, MATEY, and FISHER, Circuit Judges.

(Filed: October 6, 2023) ______________

OPINION ∗ ______________

∗ This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not constitute binding precedent. SHWARTZ, Circuit Judge.

Petitioner Yessica Fernanda Molina-Ramirez seeks review of the orders of the

Board of Immigration Appeals (“BIA”) dismissing her: (1) appeal of the Immigration

Judge’s (“IJ”) denial of her applications for asylum and withholding of removal and (2)

motion to reopen based on ineffective assistance of counsel. For the following reasons,

we will deny the petition.

I

Petitioner, a native and citizen of Honduras, entered the United States without

authorization as an unaccompanied minor and the Department of Homeland Security

commenced removal proceedings under 8 U.S.C. §§ 1182(a)(6)(A)(i), 1227(a)(1)(A).

Petitioner conceded her removability but, relevant here, requested asylum and

withholding of removal.

At her merits hearing, Petitioner testified that she had a close relationship with her

older cousin, Mainor Jose Ramirez, 1 who regularly brought her to and from school. In

2010, when Petitioner was ten years old, a car without license plates followed Mainor

while he was driving Petitioner home from school. As Mainor dropped Petitioner off at

her house, he warned her “to be careful” because they were being followed. AR 723-24.

Later that day, unidentified members of a local gang killed Mainor and dumped his body

in front of his house, located next door to Petitioner’s house, and yelled that they “were

1 Parts of the record refer to Mainor as “Minor,” see, e.g., AR 642, and “Maynor,” see, e.g., AR 608. 2 going to continue on with the rest of the Ramirez family.” AR 724. Petitioner

subsequently gave a statement to the police.

In 2013, Petitioner noticed masked individuals following her while she was

shopping. Fearing for her safety, Petitioner ran home and, after she entered her house,

the pursuers fired three shots into the air and stated that “they were going to continue

doing this to the Ramirez family.” AR 738. Petitioner reported the incident to the police

and fled Honduras eight months later. Petitioner also testified that she (1) experienced no

other threats or attacks in Honduras, and (2) has more than thirty family members still

living in the same area in Honduras, none of whom have been threatened or harmed since

Mainor’s murder, except for a cousin’s husband, who was killed for unknown reasons.

The IJ found Petitioner credible but determined that she was not eligible for,

among other things, asylum. The IJ observed that even though her proposed particular

social groups (“PSGs”), namely, (1) the Ramirez family and (2) witnesses who report

crime, were cognizable, she did not establish past persecution because she was never

directly harmed. The IJ also found that she did not show a well-founded fear of future

persecution on account of her membership in either of these groups because: (a) “many

family members” continued to reside in the same area without incident, which belied

Petitioner’s objective fear of persecution based on her membership in the Ramirez

family, AR 647, and (b) Petitioner was not harmed in the years after filing the first police

report, or in the months after filing the second, which similarly undermined her objective

3 fear of persecution for being witness who reported a crime. 2 Accordingly, the IJ denied

Petitioner’s requests for relief and ordered her removal. 3

Petitioner appealed to the BIA, which dismissed the appeal, finding “no clear

error” with the IJ’s determination that Petitioner lacks an objectively reasonable, well-

founded fear of persecution if removed to Honduras for substantially the same reasons set

forth by the IJ. 4 AR 4.

Petitioner thereafter obtained new counsel and filed a motion to reopen her

removal proceedings based on the ineffective assistance of her prior counsel, arguing that

(1) counsel was not competent because he did not assert that she had a well-founded fear

of persecution based upon the existence of a pattern or practice of persecution against

witnesses who report crime to the police in Honduras, and (2) she was prejudiced by her

2 In reaching this determination, the IJ considered country conditions evidence, which discussed the difficulties experienced by witnesses who report crimes in Honduras. 3 The IJ determined that because Petitioner did not establish a claim for asylum, she was also unable to establish a claim for withholding of removal. 4 Petitioner contends that the BIA incorrectly reviewed the IJ’s reasonable fear of persecution determination for clear error, rather than conducting a de novo review. Pet. Br. at 21-22. While de novo review of this legal question was warranted, see Huang v. Att’y Gen., 620 F.3d 372, 384-85 (3d Cir. 2010), the BIA’s error is harmless and does not require remand because “it is highly probable that the error did not affect the outcome of the case,” Li Hua Yuan v. Att’y Gen., 642 F.3d 420, 427 (3d Cir. 2011) (holding that “harmless error analysis should apply in immigration cases”); NLRB v. Wyman-Gordon Co., 394 U.S. 759, 766 n.6 (1969) (stating that remand to the agency is unnecessary where it “would be an idle and useless formality”). The BIA adopted the IJ’s factual findings, and while it “discern[ed] no clear error” with the IJ’s conclusion as to the reasonableness of Petitioner’s fear of persecution, a de novo review shows that Petitioner lacks an objectively reasonable fear of persecution, and no other conclusion could be reached. AR 4. Thus, the BIA’s incorrect expression of the standard of review was harmless. 4 prior counsel’s failure to raise that claim. 5 The BIA assumed that Petitioner satisfied the

procedural requirements for bringing an ineffective assistance of counsel claim and

denied the motion because she failed to show that (1) prior counsel was incompetent for

“making a reasonable tactical decision” in not seeking to meet “the stringent standard”

for a pattern or practice claim, AR 4, and (2) there was a “significant likelihood” that the

IJ would not have granted relief as the country conditions evidence did not demonstrate a

pattern or practice of persecution against witnesses in Honduras, AR 4.

Petitioner petitions for review of both orders.

II

A6

We first review Petitioner’s requests for asylum and withholding of removal. To

be eligible for asylum, a petitioner must show that she is “unable or unwilling to return

to, and is unable or unwilling to avail [herself] . . . of the protection of, [the country in

which she last resided] because of persecution or a well-founded fear of persecution on

account of . . . membership in a particular social group.” 8 U.S.C. §§ 1101(a)(42)(A),

5 Petitioner submitted country conditions evidence in support of her motion, , some of which is duplicative of the evidence that Petitioner’s prior counsel had submitted before the IJ. 6 The IJ had jurisdiction over Petitioner’s immigration proceedings under 8 C.F.R. § 1208.2, and the BIA had jurisdiction over the appeal pursuant to 8 C.F.R. §§ 1003.1(b) and 1240.15. We have jurisdiction over final orders of removal under 8 U.S.C. § 1252. When the BIA issues its own decision on the merits, we review that decision rather than that of the IJ. Mahn v. Att’y Gen., 767 F.3d 170, 173 (3d Cir. 2014). We review legal determinations de novo and “accept factual findings if supported by substantial evidence,” meaning we must “uphold the agency’s determination unless the evidence would compel any reasonable fact finder to reach a contrary result.” Sesay v. Att’y Gen., 787 F.3d 215, 220 (3d Cir. 2015) (quotation marks omitted). 5 1158(b)(1)(B)(i); see also Garcia v. Att’y Gen., 665 F.3d 496, 503 (3d Cir. 2011).

Persecution encompasses “threats to life, confinement, torture, and economic restrictions

so severe that they constitute a threat to life or freedom.” Fatin v. INS, 12 F.3d 1233,

1240 (3d Cir. 1993). Where a petitioner has not experienced past persecution, 7 she must

establish a well-founded fear of future persecution by demonstrating both an objective

and subjective fear of persecution. Huang v. Att’y Gen., 620 F.3d 372, 381 (3d Cir.

2010). The objective component requires that “a reasonable person in the [applicant’s]

circumstances would fear persecution if returned to the country in question.” Zubeda v.

Ashcroft, 333 F.3d 463, 469 (3d Cir. 2003), abrogated on other grounds by Auguste v.

Ridge, 395 F.3d 123 (3d Cir. 2005).

Here, substantial evidence supports the BIA’s conclusion that Petitioner lacks an

objectively reasonable fear of future persecution based on her membership in either of

her PSGs. With respect to Petitioner’s fear of persecution on account of her family

membership, she testified that gang members (1) murdered Mainor and threatened to

“continue on with the rest of the Ramirez Family,” AR 724, and (2) three years later

chased Petitioner into her home, fired shots into the air, and again threatened to “continue

doing this to” her family, AR 738. These undoubtedly distressing incidents do not

7 Petitioner contends that the IJ incorrectly required her to demonstrate physical harm to demonstrate past persecution, but she did not raise that claim before the BIA and thus we lack jurisdiction to consider it. See 8 U.S.C. § 1252(d)(1); Abdulrahman v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir. 2003) (“[A noncitizen] is required to raise and exhaust his or her remedies as to each claim or ground for relief if he or she is to preserve the right of judicial review of that claim.”). She presented no other arguments challenging the BIA’s past persecution ruling. 6 compel the conclusion that Petitioner has an objectively reasonable fear of persecution

based on her family membership because more than thirty of her family members

continued to live in the area surrounding her home in Honduras and none, other than her

cousin’s husband, were harmed or threatened after Mainor’s murder. 8 See Hernandez

Garmendia v. Att’y Gen., 28 F.4th 476, 480, 483 (3d Cir. 2022) (noting that a family-

based asylum claim would be weakened by the fact that petitioner’s family had not been

threatened despite living in same home); cf. Gomez-Zuluaga v. Att’y Gen., 527 F.3d 330,

347 (3d Cir. 2008) (deeming threats and attacks on a noncitizen’s family members to be

corroborating the reasonableness of her fear of persecution). Similarly, Petitioner’s fear

of persecution on account of reporting a crime is not objectively reasonable because she

lived without incident in Honduras for approximately three years after making her first

statement to the police, and another eight months after making her second report.

Therefore, the BIA’s conclusion that Petitioner lacks a reasonable fear of persecution is

supported by substantial evidence and, accordingly, she is not entitled to asylum.

Because Petitioner has not met the standard for asylum, she does not meet the

more demanding standard for withholding of removal, Thayalan v. Att’y Gen., 997 F.3d

132, 138 (3d Cir. 2021) (holding that the standard for withholding of removal is more

demanding than the asylum standard).

8 Petitioner’s assertion that the BIA “cherry-picked” evidence in affirming the IJ’s factual findings by, for example, not referencing the death of her cousin’s husband, is unavailing. Pet. Br. 24-25. While the BIA must consider all the evidence presented, as it did here, it “need not discuss every piece of evidence mentioned by an asylum applicant.” Quinteros v. Att’y Gen., 945 F.3d 772, 786 (3d Cir. 2019) (quotation marks omitted). 7 B9

We next consider whether the BIA abused its discretion in denying Petitioner’s

motion to reopen based on her claim that her prior counsel was ineffective because he

failed to raise a “pattern or practice” of persecution claim. We conclude that it did not.

A petitioner seeking to reopen her removal proceedings based on ineffective

assistance of counsel must demonstrate that (1) “competent counsel would have acted

otherwise,” and (2) there is a “reasonable likelihood” that, but for counsel’s errors, the

result of the proceedings would have been different. 10 Fadiga, 488 F.3d at 157-59

(quotation marks omitted). Even if the BIA abused its discretion in concluding that

counsel provided competent representation, we cannot say that its conclusion as to

prejudice was “arbitrary, irrational, or contrary to law.” Filja v. Gonzales, 447 F.3d 241,

251 (3d Cir. 2006) (quotation marks omitted).

To prove a pattern or practice claim, a petitioner must show “systematic,

pervasive, or organized” persecution of similarly situated individuals. Ghebrehiwot v.

Att’y Gen., 467 F.3d 344, 351 (3d Cir. 2006) (quotation marks omitted). The country

9 The BIA had jurisdiction to review Petitioner’s motion to reopen under 8 C.F.R. § 1003.2(a). We have jurisdiction under 8 U.S.C. § 1252(a). We review the denial of a motion to reopen for abuse of discretion, “regardless of the underlying basis of the [noncitizen’s] request for relief.” Pllumi v. Att’y Gen., 642 F.3d 155, 158 (3d Cir. 2011). We review the facts underlying the BIA’s discretionary denial of a motion to reopen for substantial evidence. Korytnyuk v. Ashcroft, 396 F.3d 272, 284-85 (3d Cir. 2005). We review ineffective assistance of counsel claims de novo. Fadiga v. Att’y Gen., 488 F.3d 142, 153 (3d Cir. 2007). “[Q]uestions of law, such as whether the BIA applied the correct legal standard in considering the motion to reopen[,] . . . are also reviewed de novo.” Id. at 153-54. 10 Petitioner must also satisfy certain procedural requirements, see Fadiga, 488 F.3d at 155-56, but the BIA assumed that they were satisfied, and we will do the same. 8 conditions evidence Petitioner presented shows sporadic “incidents of violence” against

witnesses in Honduras, AR 4, but does not show pervasive or organized persecution of

those reporting crimes and thus is insufficient to establish a reasonable likelihood of a

pattern or practice of persecution, see Lie v. Ashcroft, 396 F.3d 530, 537 (3d Cir. 2005)

(holding that there was no pattern or practice of persecution despite “widespread attacks,”

including “riots, vandalism, and robbery”). Therefore, Petitioner was not prejudiced by

her prior counsel’s failure to pursue this claim, and as a result, the BIA did not abuse its

discretion in denying Petitioner’s motion to reopen based upon alleged ineffective

assistance of counsel. 11

III

For the foregoing reasons, we will deny the petition for review.

11 Petitioner asserts that the BIA improperly required Petitioner to show an actual pattern or practice of persecution, rather than merely establishing a prima facie case. The BIA, however, used the correct legal standard to analyze the prejudice prong. AR 4 (assessing whether “she has []shown ‘a significant likelihood that the [IJ] would not have entered an order of removal absent [former] counsel’s [alleged] errors.” (citing Fadiga, 488 F.3d at 159)). 9