Garcia-Arce v. Barr

• Decision Date: 30 December 2019
• Docket Number: Nos. 19-1453,19-2312,s. 19-1453
• Parties: Elvira GARCIA-ARCE, Petitioner, v. William P. BARR, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

946 F.3d 371

Elvira GARCIA-ARCE, Petitioner,

v.William P. BARR, Attorney General of the United States, Respondent.

Nos. 19-1453

19-2312

United States Court of Appeals, Seventh Circuit.

Argued December 11, 2019

Decided December 30, 2019

Maria T. Baldini-Potermin, Attorney, Lisa Chun, Attorney, Maria Baldini-Potermin & Associates, Suite 3100, 33 N. LaSalle Street, Chicago, IL 60602-0000, for Petitioner

Kate Deboer Balaban, Attorney, Civil Division, Immigration Litigation, P.O. Box 878, Ben Franklin Station, Washington, DC 20044-0000, for Respondent

Before Flaum, Hamilton, and Barrett, Circuit Judges.

Flaum, Circuit Judge.

Elvira Garcia-Arce seeks withholding of removal to Mexico under the Immigration and Nationality Act and the Convention Against Torture. She has filed two petitions for review of orders of the Board of Immigration Appeals (the "Board"). We deny both petitions. As to the first petition, the Board’s decision affirming the denial of Garcia-Arce’s withholding application was supported by substantial evidence. As to the second petition, the Board did not abuse its discretion in concluding that Garcia-Arce’s prior counsel’s assistance was not so deficient that Garcia-Arce was prevented from reasonably presenting her case.

I. Background

Elvira Garcia-Arce, also known as Erika Esmeralda Fregoso Lopez, is a native and citizen of Mexico who was removed from the United States in 2001 and illegally re-entered the United States shortly thereafter. After she was arrested for driving under the influence and without a license in 2018, the Department of Homeland Security detained her and reinstated her 2001 removal order.

Attorney Gwendolyn Smith prepared Garcia-Arce’s application for withholding of removal and represented her in subsequent immigration proceedings. After an asylum officer interviewed Garcia-Arce, an immigration judge held a hearing on the merits of Garcia-Arce’s application. Garcia-Arce sought withholding of removal under the Immigration and Nationality Act, see 8 U.S.C. § 1231(b)(3), and the Convention Against Torture, see 8 C.F.R. §§ 1208.16 – .18, based on her purported fear of persecution and torture if removed to Mexico.

The immigration judge denied her request for withholding of removal. At her hearing before the immigration judge, Garcia-Arce testified that she feared returning to Mexico because in her hometown she was physically assaulted by her brother and sexually assaulted by her uncle and a man named "Tacos," who was a member of a gang to whom her brother "sold her" to repay a drug debt. The immigration judge noted that there were "serious problems" with Garcia-Arce’s credibility due, in part, to her having presented a fake birth certificate at the border and her statements to border agents that she did not fear returning to Mexico. The immigration judge nevertheless held that even assuming Garcia-Arce had shown that she had been subjected to persecution in Mexico, it was both possible and reasonable for Garcia-Arce to avoid the threat of persecution by relocating within Mexico. She testified that her brother had passed away from a drug overdose, that her uncle still lives in her hometown, and that she had previously lived in Mexico with the father of her son in a town that was four hours outside of her hometown, where she did not have contact with Tacos or other gang members.

The immigration judge also found that Garcia-Arce neither alleged that a Mexican government official had acquiesced in any torture of her nor established that a Mexican government official would acquiesce in any future torture of her. Although Garcia-Arce had submitted general reports regarding country conditions in Mexico describing gang violence and other safety issues, the judge noted that a 2017 State Department report also stated that Mexican law imposes an "absolute prohibition" on torture and that a new law "adds higher penalties for conviction of torturing vulnerable classes of victims,[ ] including women and persons with disabilities."

Garcia-Arce appealed to the Board of Immigration Appeals (the "Board"). In February 2019, the Board adopted and affirmed the immigration judge’s decision. The Board found no clear error in the immigration judge’s findings of fact and noted that Garcia-Arce had not raised the Convention Against Torture as a ground for her appeal. Garcia-Arce retained new counsel and filed with this Court a petition for review of the Board’s February 2019 order.

Garcia-Arce also filed with the Board a motion to reopen immigration proceedings based on Attorney Smith’s allegedly ineffective assistance. Garcia-Arce claimed that Attorney Smith was ineffective because she did not: (1) properly advance Garcia-Arce’s claim that she would be persecuted upon return to Mexico as a result of her alleged mental illness; (2) properly advance her Convention Against Torture claim based on drug cartels and corrupt law enforcement in Mexico; and (3) correctly advise Garcia-Arce regarding her eligibility for bond.

In July 2019, the Board denied Garcia-Arce’s motion to reopen, holding that Attorney Smith "made tactical decisions based on her reasonable professional assessment of [Garcia-Arce]’s case." The Board concluded that it was reasonable for Attorney Smith to focus her arguments on Garcia-Arce’s past mistreatment in Mexico at the hands of her family and the gang rather than on account of her mental health, because the "testimony and evidence did not ‘support a likelihood of harm based upon her mental health.’ " And even if Attorney Smith was mistaken in advising Garcia-Arce that she was eligible for bond, the Board held that Garcia-Arce had not shown that she suffered prejudice as a result. The Board also concluded that Garcia-Arce had not "demonstrated exceptional circumstances warranting the Board’s exercise of its discretion to reconsider its prior decision sua sponte under 8 C.F.R. § 1003.2(a)." Garcia-Arce then filed with this Court a petition for review of the Board’s July 2019 order denying her motion to reopen.

Now before this Court are Garcia-Arce’s petitions for review of the Board’s February and July 2019 orders. Garcia-Arce argues that the Board’s February order should be reversed because the evidence compelled the conclusion that she was entitled to withholding of removal. She argues that the July order should be reversed because the Board abused its discretion in denying her claim of ineffective assistance.

II. Discussion

A. Denial of Application for Withholding

The Board’s February 2019 decision affirming the immigration judge’s denial of Garcia-Arce’s application for withholding of removal is supported by substantial evidence. Where, as here, "the Board has adopted the decision of the immigration judge and added its own reasoning, we review both decisions." Ruiz-Cabrera v. Holder , 748 F.3d 754, 757 (7th Cir. 2014). We must not disturb the Board’s holding if it is "supported by reasonable, substantial, and probative evidence on the record considered as a whole." Khan v. Holder , 766 F.3d 689, 695 (7th Cir. 2014) (citation omitted). Under this "highly deferential standard," Rodriguez Galicia v. Gonzales , 422 F.3d 529, 535 (7th Cir. 2005), we "reverse only if the evidence compels a contrary conclusion," Abdoulaye v. Holder , 721 F.3d 485, 490 (7th Cir. 2013) (citation omitted). The Board’s "findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B).

1. Immigration and Nationality Act

An alien is entitled to withholding of removal to a country under the Immigration and Nationality Act if the alien’s "life or freedom would be threatened in that country because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion."

8 U.S.C. § 1231(b)(3)(A). If the applicant establishes that she has suffered past persecution on account of her membership in a protected group, she is entitled to a rebuttable presumption that she will be persecuted in the future on the same basis. 8 C.F.R. § 1208.16(b)(1)(i). The presumption may be rebutted if circumstances have changed such that the applicant’s life or freedom would not be threatened on account of her membership in a protected class, id. at § 1208.16(b)(1)(i)(A), or if the applicant could avoid the threat by relocating to another part of the proposed country and it would be reasonable to expect the applicant to do so, id. at § 1208.16(b)(1)(i)(B). If the applicant cannot establish past persecution, she must show a "clear probability" of future persecution, "meaning that it is more likely than not that [she] would be subject to persecution" if removed. Tsegmed v. Sessions , 859 F.3d 480, 484 (7th Cir. 2017).

The Board’s conclusion that Garcia-Arce could relocate within Mexico to avoid the threat of future persecution, and that it would be reasonable to expect her to do so, was supported by substantial evidence. Garcia-Arce had previously lived four hours away from her hometown unharmed. Specifically, the immigration judge found that Garcia-Arce avoided contact with Tacos and the gang during a time period that "ranged from approximately 1997 until her entry into the United States in 2001." Although Garcia-Arce initially testified that Tacos abused her in 2000, she was asked clarifying questions and confirmed that she did not have contact with him after he last abused her in 1997. Garcia-Arce offers no evidence that compels a conclusion that she could not safely relocate within Mexico.

2. Convention Against Torture

Garcia-Arce also is not entitled to relief based on her unexhausted Convention Against Torture claim. "A failure to exhaust administrative remedies usually forecloses a petitioner from raising an issue in federal court that was not raised before the immigration tribunal." Duarte-Salagosa v. Holder , 775 F.3d 841, 846 (7th Cir. 2014). "To exhaust an administrative remedy an applicant must present to the Board any arguments that lie...