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Ramos-Braga v. Sessions

United States Court of Appeals, Seventh Circuit

May 21, 2018

Rodrigo Ramos-Braga, Petitioner,
v.
Jefferson B. Sessions III, Attorney General of the United States, Respondent.

          Argued January 24, 2018

          Petition for Review of an Order of the Board of Immigration Appeals. No. A 097-837-809

          Before Bauer, Kanne, and Barrett, Circuit Judges.

          PER CURIAM

         Rodrigo Ramos-Braga, a citizen of Brazil, petitions for review of the denial of his second motion to reopen proceedings on his applications for special-rule cancellation of removal, withholding of removal, and protection under the Convention Against Torture (CAT). His motion was both numerically barred and untimely filed with the Board of Immigration Appeals, but Ramos-Braga argued that these limits should be excused under the doctrine of equitable tolling for ineffective assistance of counsel or under a statutory exception based on changed country conditions. The Board determined that neither exception applied and that the time and numerical limits therefore barred his motion. Because the Board did not abuse its discretion, we deny the petition.

         I.

         Ramos-Braga was raised in a neighborhood of Sao Paulo, Brazil that came to be controlled by a multi-national gang named the Primero Comando Capital (PCC). His father dealt drugs for the gang and was one of its managers, until he had a falling out with the gang's leader. Starting when Ramos-Braga was 13, the PCC tried repeatedly to recruit him, but he refused to join. Unrelenting, PCC members caught Ramos-Braga at school and around town, physically attacked him at least ten times, and eventually threatened him with death. Initially, Ramos-Braga reported these attacks to Brazilian officials, but local police did nothing in response and eventually, officers would beat him when he made reports, claiming that he was a suspected gang member. At age 16 he stopped reporting his PCC encounters to police because in one instance officers beat him until he spat blood, and he came to believe that the police were paid by the PCC to harm him. When Ramos-Braga was about 18 years old, PCC members offered him one "last chance" to join; after he refused they assaulted him with pipes-severely injuring him and hospitalizing him for two weeks. He stopped attending college and spent months moving between homes of his family members in other parts of the city and another town. When he returned to Sao Paulo, a PCC member shot him from behind, putting him back in the hospital for days.

         In January 1999, three months after being shot, Ramos-Braga was admitted to the United States on a student visa. He eventually married a U.S. citizen, but the two had a tumultuous relationship. Ramos-Braga estimated that his wife physically abused him over 100 times.

         Seven years after he arrived, the Department of Homeland Security issued a Notice to Appear charging Ramos-Braga with overstaying his visa and therefore being removable under 8 U.S.C. § 1227(a)(1)(B). Ramos-Braga conceded his removability and eventually sought special-rule cancellation of removal for battered spouses and withholding of removal under 8 U.S.C. § 1231(b)(3) and CAT.

         While removal proceedings were pending, Ramos-Braga and his wife got into a fight. He was convicted of battery under Wisconsin law and, after he used a jailhouse phone to ask his wife not to testify, intimidation of a witness, WIS. STAT. §§ 940.19(1), 940.42. DHS added a charge that he was removable under 8 U.S.C. § 1227(a)(2)(A)(ii) for having been convicted of two crimes involving moral turpitude. He challenged removability on this ground.

         At his removal hearing, Ramos-Braga testified about the beatings by PCC members and police officers. He also said that the gang recruited young men and that he believed he specifically was recruited because of something his father had done, but he did not know what. The IJ found Ramos-Braga credible but denied his applications for special-rule cancellation and withholding and ordered him removed to Brazil.

         To obtain special-rule cancellation, Ramos-Braga had to prove, among other things, that he had been battered by his wife and was not subject to certain disqualifying grounds of removability or inadmissibility. See 8 U.S.C. § 1229b(b)(2). The IJ concluded that Ramos-Braga was disqualified on two grounds: his convictions for battery and witness intimidation were crimes of moral turpitude, and he had been confined in excess of five years total for past convictions. See 8 U.S.C. §§ 1229b(b)(2)(A)(iv), 1182(a)(2)(A)(i)(I), 1182(a)(2)(B), 1227(a)(2)(A)(ii).

         Ramos-Braga could receive withholding of removal in two ways: either under statute or under CAT. To receive withholding of removal under statute, he had to prove that it was more likely than not that, if he were removed, he would be persecuted in Brazil on account of his membership in a particular social group. See id. § 1231(b)(3); 8 C.F.R. § 1208.16(b). The IJ concluded that Ramos-Braga suffered past persecution but presented "little proof" that this persecution was on account of his particular social group, namely his family ties to his father. Instead, "the greater weight of the evidence support[ed] the conclusion that he was persecuted because he refused the PCC's recruitment efforts." To merit withholding under CAT, Ramos-Braga had to demonstrate that it was more likely than not that, if removed to Brazil, he would be tortured by or with the acquiescence of a public official. See 8 C.F.R. § 1208.16(c)(2). The IJ determined that he did not carry his burden to prove that he was more likely than not to be tortured by either the police or PCC.

         Ramos-Braga, who was represented by counsel, appealed the denial of his applications for withholding but not the denial of special-rule cancellation. The Board affirmed the IJ's decision on December 18, 2014.

         In January 2015, Ramos-Braga petitioned this court for review and moved to stay his removal. His attorney ended the representation over a fee dispute, however, and Ramos-Braga continued pro se, filing motions in this court and, after his petition was denied, another petition for review that was dismissed for lack of jurisdiction for having been filed more than 30 days after the final order of removal.

         Ramos-Braga, still pro se, moved the Board to reopen proceedings on his applications for relief from removal and to reconsider its dismissal order. The Board denied his motion as untimely in June 2015, but he maintains he never received notice of this decision.

         Ramos-Braga filed a second pro se motion to reopen or reconsider on August 31, 2015, and at issue here is the Board's denial of that motion on the grounds that it was untimely and successive. Ramos-Braga explained that his motion to reopen was late because his former attorney had promised repeatedly to file a timely motion, but he never did. He also said that conditions in Brazil had gotten worse since the hearing, and he offered evidence to that effect. A year later, in August 2016, Ramos-Braga retained his present attorney, who filed a supplemental brief supporting the still-pending second motion to reopen. Through counsel, Ramos-Braga argued that his second motion to reopen should not have been barred because the exceptions for equitable tolling for ineffective assistance of counsel and changed conditions in the country of removal excused his noncompliance. Regarding the first exception, Ramos-Braga said that his attorney in the original appeal to the Board had waived meritorious arguments for special-rule cancellation and withholding under CAT.

         The Board denied the second motion to reopen based on its conclusion that Ramos-Braga did not meet either exception. Equitable tolling could not benefit him, the Board said, because he did not file his motion as soon as possible after learning of his former attorney's alleged errors, nor was he prejudiced by any possible error. The Board also concluded that he did not offer evidence of conditions in Brazil that had changed since the removal hearing; ...


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