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Garcia-Arce v. Barr

United States Court of Appeals, Seventh Circuit

December 30, 2019

Elvira Garcia-Arce, Petitioner,
William P. Barr, Attorney General of the United States, Respondent.

          Argued December 11, 2019

          Petitions for Review of Orders of the Board of Immigration Appeals. No. A079-775-996

          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 ...

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