United States Court of Appeals For the First Circuit

No. 22-1778

MYNOR ISAIAS YOC ESTEBAN,

Petitioner,

v.

MERRICK B. GARLAND, United States Attorney General,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

Before

Barron, Chief Judge, Lynch and Montecalvo, Circuit Judges.

Daniel T. Welch on brief for petitioner. Brian M. Boynton, Principal Deputy Assistant Attorney General, Civil Division, Shelley R. Goad, Assistant Director, Office of Immigration Litigation, and Jennifer A. Singer, Trial Attorney, U.S. Department of Justice, Civil Division, Office of Immigration Litigation, on brief for respondent.

August 7, 2023 LYNCH, Circuit Judge. Mynor Isaias Yoc Esteban

petitions for review of the Board of Immigration Appeals' ("BIA")

denial of his motion to reopen proceedings under 8 U.S.C.

§ 1229a(c)(7). We deny the petition.

I.

Yoc Esteban, a native and citizen of Guatemala,

unlawfully entered the United States in 2014 at age 19. He was

served with a notice to appear in immigration court, charging him

as removable pursuant to section 212(a)(6)(A)(i) of the

Immigration and Nationality Act ("INA"),

(a)(6)(A)(i), for being present in the United States without

having been admitted. He conceded the charge of removability, and

sought asylum, claiming persecution based on membership in a

particular social group ("PSG").1 The immigration judge ("IJ")

issued a pretrial order on February 22, 2017, requesting that Yoc

Esteban specify the PSG in which he claimed membership. Yoc

Esteban, through counsel, did not delineate for the record any

1 When he first crossed into the United States, Yoc Esteban represented himself to be 17 years old and was deemed an unaccompanied minor under the jurisdiction of the United States Citizenship and Immigration Services ("USCIS"). See

(b)(3)(C). On May 15, 2015, USCIS determined that Yoc Esteban failed to establish asylum eligibility and returned his application for asylum to the immigration judge ("IJ") for further adjudication. Yoc Esteban updated his asylum application when his matter was returned to the immigration judge.

- 2 - proposed PSG. Nor did Yoc Esteban request withholding of removal

or protection under the Convention Against Torture ("CAT").

On May 15, 2019, the IJ heard testimony from Yoc Esteban.

He testified to the following: that he came to the United States

"because [he] was . . . persecuted by three [delinquents] [who]

sold drugs and . . . wanted [him] to work with them"; that the

three "delinquents" gave him "a package of drugs to be transferred

to another group"; that he completed one delivery because "[he]

was afraid" and "felt [his] life was at risk"; that he told his

father about the packages, and his father threw out the remaining

packages and told Yoc Esteban to stop working with the

"delinquents"; that the "delinquents" then threatened Yoc

Esteban's life and threatened to harm his family on multiple

occasions; and that he feared that "[he] would be persecuted again"

if he returned to Guatemala.

The IJ issued an oral decision that same day, denying

Yoc Esteban's asylum application because he failed to establish

that he was targeted based on a protected ground (i.e., based on

his membership in a PSG). The IJ ordered him removed to Guatemala.

Yoc Esteban appealed, and on February 11, 2021, the BIA

affirmed the IJ's determination that Yoc Esteban did not meet his

burden to prove eligibility for asylum. The BIA did not address

Yoc Esteban's attempts to assert new PSGs on appeal because Yoc

Esteban did not explain why the PSGs were not raised before the IJ

- 3 - and Yoc Esteban was represented by the same counsel before the IJ

and BIA. The BIA also denied Yoc Esteban's request to remand the

case to the IJ so that he could provide additional evidence to

demonstrate his eligibility for asylum and withholding of removal.

On July 28, 2021, Yoc Esteban -- represented by new

counsel -- filed an untimely motion to reopen on the basis that

the applicable time limit should be equitably tolled because he

received ineffective assistance of counsel. Yoc Esteban argued

that his prior counsel was ineffective because she failed: to

comply with the IJ's order to delineate a PSG, which was fatal to

Yoc Esteban's claim; to amend Yoc Esteban's pleadings to include

an application for withholding of removal under INA § 241(b)(3),

(b)(3), and under the regulations implementing CAT;

and to sufficiently represent Yoc Esteban on direct examination.

On October 5, 2022, the BIA denied his motion on the

stated grounds that (1) it was untimely filed more than 90 days

after the final administrative order on February 11, 2021, and (2)

Yoc Esteban failed to demonstrate prejudice from his counsel's

actions or omissions and so (3) he could not establish ineffective

assistance of counsel and (4) in consequence, his argument for

equitable tolling of his late-filed petition failed. The BIA

emphasized that even in his motion to reopen, Yoc Esteban did not

"identif[y] what [PSG] should have been raised" before the IJ,

"offer further evidence or otherwise argue his eligibility for

- 4 - withholding of removal or protection under CAT," or "articulate

what additional testimony he would have provided to support his

claim, if not for prior counsel's 'cursory' direct examination."

II.

Motions to reopen, especially untimely ones, are

"disfavored" in immigration cases because they "run at cross-

purposes with 'the compelling public interests in finality and the

expeditious processing of proceedings.'" Pineda v. Whitaker,

(1st Cir. 2018) (quoting Guerrero-Santana v.

Gonzales,

(1st Cir. 2007)). We review the BIA's

denial of the motion to reopen for abuse of discretion. See

Laparra-Deleon v. Garland,

(1st Cir. 2022). This

court accords "considerable deference to the BIA's decision on a

motion to reopen." Guerrero-Santana,

. "[W]e uphold

findings of fact about ineffective assistance 'as long as they are

supported by substantial evidence on the record as a whole.'"

United States v. Castillo-Martinez,

(1st Cir.

2021) (quoting Ferreira v. Barr,

(1st Cir. 2019)).

"We will uphold the BIA's decision unless the petitioner can show

that the BIA either committed a material error of law or exercised

its authority arbitrarily, capriciously, or irrationally."

Pineda,

.

- 5 - III.

Yoc Esteban argues that the BIA abused its discretion

when it denied his motion to reopen. A "motion to reopen shall be

filed within 90 days of the date of entry of a final administrative

order of removal," subject to certain exceptions not relevant to

this appeal. 8 U.S.C. § 1229a(c)(7)(C)(i). The BIA entered its

final order of removal on February 11, 2021, and Yoc Esteban filed

his motion to reopen on July 28, 2021. Because his motion to

reopen was untimely, Yoc Esteban argues that the BIA should have

equitably tolled the deadline to file his motion to reopen due to

ineffective assistance of counsel. See Pineda,

-

41; Neves v. Holder,

(1st Cir. 2010) (explaining

equitable tolling as "extend[ing] statutory deadlines in

extraordinary circumstances for parties who were prevented from

complying with them through no fault or lack of diligence of their

own"). We note at the outset that "'whether equitable tolling can

suspend the time limits applicable to motions to reopen' is an

open question in the First Circuit." Pineda,

(quoting Wang v. Holder,

(1st Cir. 2014)). We

need not answer that question here because Yoc Esteban's arguments

for equitable tolling plainly fail.

A noncitizen raising an ineffective assistance of

counsel claim through a motion to reopen must comply with certain

procedural requirements. See Castillo-Martinez,

.

- 6 - "Once the procedural requirements are satisfied, the BIA reviews

ineffective assistance claims for two substantive requirements:

(1) immigration counsel's performance was deficient; and (2)

immigration counsel's performance caused prejudice to the client."

; see Matter of Melgar,

(B.I.A.

2020). The BIA concluded that Yoc Esteban met the procedural

requirements, so the BIA's analysis of his motion turned on whether

he could show prejudice, bypassing the first substantive

requirement. To do so, he had to prove a "reasonable probability"

that but for counsel's errors, the outcome of the proceedings would

have been different. Zeru v. Gonzales,

(1st Cir.

2007).

Yoc Esteban argues to us that he has proven prejudice by

establishing that "[h]ad [his] [o]riginal [c]ounsel delineated a

[PSG] in the pre-trial statement, developed the record[,] and

argued said social group at the hearing[, he] would have had a

realistic chance or a reasonable probability of prevailing on his

application for asylum"; that his original counsel's failure to

apply for withholding of removal and CAT protection "is a due

process violation and requires remand"; and that his original

counsel's "direct examination was so cursory that [he] was unable

to give his entire account of what happened to him in [Guatemala]."

The BIA considered and rejected every argument that Yoc Esteban

raised in his motion to reopen.

- 7 - We hold that the BIA did not abuse its discretion in

determining that Yoc Esteban was ineligible for equitable tolling

because he failed to establish prejudice.

First, as the BIA noted, Yoc Esteban's motion to reopen

failed to identify the PSG(s) his original counsel should have

raised before the IJ, thus making it difficult for the BIA to

determine the impact on the proceedings of his original counsel's

failure to provide further evidence that could have supported a

cognizable PSG. On appeal, Yoc Esteban provides examples of PSGs

that he "could have fit into had the record been developed by

competent counsel," including "Guatemalan minor witness to a

crime," "Guatemalan minor forced to smuggle drugs for criminal

organization," "Guatemalan youth actively recruited by gangs but

who have refused to join because they oppose gangs," and his

"nuclear family." Setting aside whether any of these PSGs are

legally cognizable, Yoc Esteban did not present these potential

PSGs to the BIA, see

("A motion to reopen proceedings

before the BIA must state 'new facts that will be proven at a

hearing to be held if the motion is granted.'") (emphasis added)

(quoting

(c)(1)), and he cannot rely on them now

as the basis of his argument that the BIA abused its discretion.

Yoc Esteban further contends that the BIA erred by not addressing

the facts in the record. But he develops no argument as to why

- 8 - those facts would support finding either a cognizable PSG or a

nexus between that PSG and the conduct alleged.

Further, the BIA did not abuse its discretion in

determining that Yoc Esteban's claim that he is prima facie

eligible for withholding of removal and CAT protection was

insufficient to establish prejudice. Yoc Esteban argues he is

prima facie eligible on these two grounds because "[t]here is no

legal or strategical reason to only apply for [a]sylum" and that

is why the "I-589 application encompasses all three forms of relief

in one application." This general argument makes no reference to

Yoc Esteban's specific circumstances and fails to point to evidence

in the record or offer new evidence to support this claim.

Finally, the BIA properly reasoned that Yoc Esteban

failed to establish prejudice because he could not articulate what

additional testimony he would have provided if not for his original

counsel's alleged deficiencies. See Franco-Ardon v. Barr,

(1st Cir. 2019) (finding no prejudice where the

noncitizen failed to identify anything in the record to demonstrate

a likelihood of success in his original case apart from his

"conclusory" assertions that "he had meritorious issues to raise

in that earlier" case).

We conclude that the BIA neither committed a material

error of law nor acted arbitrarily, capriciously, or irrationally.

The BIA did not abuse its discretion in denying Yoc Esteban's

- 9 - untimely motion to reopen and declining to equitably toll the

deadline.

The petition is denied.

- 10 -