Summary
The Seventh Circuit denied a petition for review of the BIA's denial of a second motion to reopen removal proceedings as numerically barred and untimely. The court held that equitable tolling for ineffective assistance of counsel did not apply because the petitioner failed to show prejudice, as his battery conviction was properly classified as a crime involving moral turpitude under the then-controlling *Silva-Trevino I* framework, and his evidence of official acquiescence to torture by the PCC in Brazil was insufficient for CAT relief. The court also held that the changed country conditions exception did not apply because the petitioner's evidence of worsening gang threats and police violence was either not new, not material, or did not establish a nexus to his particular social group for withholding of removal. The BIA did not abuse its discretion in denying the motion.
Topics
Practice areas
Questions Presented
- Whether the Board abused its discretion in denying equitable tolling of the time and numerical limits on Ramos-Braga's second motion to reopen based on ineffective assistance of counsel.
- Whether the Board abused its discretion in denying the motion to reopen based on changed country conditions in Brazil.
Holdings
- The Board did not abuse its discretion because Ramos-Braga failed to show prejudice from his former attorney's alleged errors. The IJ's analysis under Silva-Trevino I was proper, and the evidence of official acquiescence for CAT was insufficient, so any attorney error did not affect the outcome.
- The Board did not abuse its discretion because Ramos-Braga did not present evidence of material changed conditions that would alter the outcome of his applications. The evidence of the PCC's motive and threats did not change the nexus issue for withholding under statute, and the evidence of police corruption did not compel a finding of official acquiescence for CAT.
Key quotations
“This court reviews the Board’s denial of a motion to reopen for an abuse of discretion, and an abuse occurs if the decision lacks a 'rational explanation, inexplicably depart[s] from established policies, or rest[s] on [either] an impermissible basis,' Marinov v. Holder, 687 F.3d 365, 368 (7th Cir. 2012), or legal error, Habib v. Lynch, 787 F.3d 826, 831 (7th Cir. 2015).” (at 6)
“CAT protection requires evidence that the Petitioner will be tortured by the government, or with the government’s acquiescence. Lopez v. Lynch, 810 F.3d 484, 492 (7th Cir. 2016).” (at 11)
“Because the Board did not abuse its discretion, we deny the petition.” (at 22)
Factual background
Ramos-Braga was raised in a neighborhood of São Paulo, Brazil controlled by the PCC gang. His father was a drug dealer for the gang. Starting at age 13, the PCC tried to recruit him, but he refused. He was physically attacked multiple times, and police officers beat him when he reported the attacks. When he was 18, PCC members assaulted him with pipes, hospitalizing him for two weeks. Later, a PCC member shot him. He entered the U.S. on a student visa in 1999 and overstayed. He married a U.S. citizen and was convicted of battery and witness intimidation. DHS charged him with removability.
Procedural history
Ramos-Braga, a Brazilian citizen, was ordered removed after overstaying his visa and was convicted of battery and witness intimidation. The IJ denied his applications for special-rule cancellation of removal, withholding of removal, and CAT protection. The BIA affirmed. Ramos-Braga filed a second motion to reopen, which the BIA denied as untimely and successive. He petitioned for review.