The Hon. David H. Souter, Associate Justice (Ret.) of the *

Supreme Court of the United States, sitting by designation.

Not for Publication in West's Federal Reporter

United States Court of Appeals

For the First Circuit

No. 09-1474

CONSUELO BARRIENTOS; JUAN RAMÓN PINEDA,

Petitioners,

v.

ERIC H. HOLDER JR., 

UNITED STATES ATTORNEY GENERAL,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER OF

THE BOARD OF IMMIGRATION APPEALS

Before

Torruella, Circuit Judge,

Souter, Associate Justice, and Stahl, Circuit Judge. *

Stephen M. Born for petitioners.

Gladys M. Steffens Guzmán, Trial Attorney, Office of

Immigration Litigation, Tony West, Assistant Attorney General, and

Anthony P. Nicastro, Senior Litigation Counsel, for respondent.

May 11, 2010
Barrientos' petition for review is filed jointly with Juan 1

Ramon Pineda, her husband and derivative beneficiary. Pineda is

also a native and citizen of Guatemala. 

It is not clear from the record or briefs why the respondent 2

submitted three separate asylum applications or why the government

waited until 2006 to issue a Notice to Appear. Nonetheless, these

unresolved questions have no bearing on the legal issues before us.

-2-

STAHL, Circuit Judge. An immigration judge (IJ) denied

Consuelo Barrientos' application for asylum and withholding of 1

removal and the Board of Immigration Appeals (BIA) dismissed her

appeal of that denial. The BIA also contemporaneously denied

Barrientos' motion to remand proceedings, a request based on a

claim that Barrientos' prior counsel's alleged ineffective

assistance amounted to a due process violation. On appeal to this

court, Barrientos seeks review of both BIA determinations. After

careful consideration, we deny Barrientos' petition as to both

issues. 

I. Background

In 1992, Consuelo Barrientos entered the United States

without inspection from Guatemala. She submitted three subsequent

asylum applications, in 1992, 1998, and 2006. In September 2006, 2

the Department of Homeland Security issued a Notice to Appear (NTA)

for being present in the United States without having been

previously admitted or paroled. Before the IJ, Barrientos admitted

the allegations in the NTA, conceded removability, and sought

relief pursuant to the Nicaraguan Adjustment and Central American
-3-

Relief Act (NACARA), asylum, withholding of removal, the Convention

Against Torture, and voluntary departure. 

The essence of Barrientos' asylum claim was that she fled

Guatemala in 1992 after being threatened by masked guerrillas who

demanded she reveal the location of her now-deceased first husband,

who had been a military commissioner in their town and who had fled

Guatemala for the United States when the guerrillas threatened to

kill him. Given twelve days to tell the guerrillas where her

husband was or face reprisals, Barrientos made provisions for her

children in Guatemala and then fled alone to the United States.

During her asylum hearing, she stated that she feared returning to

Guatemala because there are "still a lot of groups in Guatemala"

and "it's still dangerous." She also said she feared "groups that

are going around killing people [and] committing terrorist acts."

The IJ denied Barrientos' NACARA application, finding

that she did not meet the statutory requirement of a date of entry

into the United States before October 1, 1990. Further, assuming

the credibility of Barrientos' written asylum application and oral

testimony, the IJ denied asylum and withholding relief, concluding

that her claim of persecution by the guerrillas did not meet the

statutory requirements for past persecution or a well-founded fear

of future persecution. The IJ did grant Barrientos the limited

remedy of voluntary departure.
As a preliminary matter, we decline the government's request 3

that we decide the question of whether there is a Fifth Amendment

right to counsel in removal proceedings when the relief sought is

non-discretionary, such as with withholding of removal. We need

not address that question in order to resolve the matter before us.

We also note that the Supreme Court's recent decision in Padilla v.

Kentucky, No. 08-651, 78 U.S.L.W. 4235 (U.S. March 31, 2010), does

not provide an answer to the question the government urges us to

consider. 

-4-

The BIA dismissed Barrientos' appeal of the IJ's denial

of asylum and withholding, concluding that she neither suffered

past persecution nor had a well-founded fear of future persecution,

and was thus ineligible for asylum and therefore also ineligible

for the non-discretionary relief of withholding of removal.

As to Barrientos' motion to remand proceedings based on

her former counsel's alleged ineffective assistance at the IJ

hearing, the BIA concluded that there was no evidence of a denial

of due process that would justify a remand:

The record indicates that prior counsel, the

DHS attorney, and the Immigration Judge asked

[Barrientos] questions relevant to the asylum

application. [Barrientos] on appeal [has] not

identified the facts or evidence that [she] was

precluded from providing that were material to

[her] application for relief from removal. 

II. Discussion

A. Due Process Claim

We first address Barrientos' appeal of the BIA's denial

of her due process claim. Barrientos alleges that her counsel 3

before the IJ provided ineffective assistance by asserting grounds
Specifically, the attorney asserted claims for relief 4

pursuant to NACARA and cancellation of removal, neither of which

was appropriate given Barrientos' date of entry and her lack of a

United States citizen spouse, parent, or child. 

-5-

for relief for which she was clearly ineligible, failing to submit 4

proper documentation in support of those ineligible claims, and

failing to prepare to present her asylum and withholding claims or

background materials supporting those claims. Indeed, after the IJ

determined that Barrientos was likely ineligible for relief under

NACARA and cancellation of removal, he requested that counsel

proceed by presenting Barrientos' asylum claim, to which counsel

replied, "I'm not prepared to go forward on that today, Judge."

The IJ replied:

Well, then you better be -- get prepared

because, you know, I, I, I put the case on

so that we could get an idea as to whether

or not there was some basis to the claim. 

The IJ continued:

Well, you're going to have to ask her about

her asylum case. I mean, I've got an

interpreter here, I set aside three hours.

You can simply ask her why it is, if at all,

she's afraid to go back to Guatemala, if

you'd like. 

Counsel then proceeded to ask Barrientos why she fled Guatemala and

whether she feared returning. Our review of the record shows that

Barrientos cogently narrated the basis of her asylum and

withholding claims, and that her oral account closely paralleled
-6-

the one she gave in her written application as well as her

recitation of the facts on appeal to the BIA and to this court.

The record also shows that the IJ and counsel for the government

had the opportunity to ask appropriate and probing questions of

Barrientos regarding her claim of persecution.

"Ineffective assistance of counsel in a deportation

proceeding is a denial of due process only if the proceeding was so

fundamentally unfair that the alien was prevented from reasonably

presenting his case." Lozada v. INS, 857 F.2d 10, 13 (1st Cir.

1988) (internal quotation omitted); see also Guerrero-Santana v.

Gonzales, 499 F.3d 90, 93 (1st Cir. 2007); Betouche v. Ashcroft,

357 F.3d 147, 149 (1st Cir. 2004). To succeed on such a due

process claim, we have generally required the petitioner to show "a

reasonable probability of prejudice" caused by former counsel's

performance. Saakian v. INS, 252 F.3d 21, 25 (1st Cir. 2001); see

also Zeru v. Gonzales, 503 F.3d 59, 72 (1st Cir. 2007); Wang v.

Ashcroft, 367 F.3d 25, 28 (1st Cir. 2004). 

Though Barrientos styled her motion before the BIA as a

motion to remand, "[a]s a procedural matter, a claim of ineffective

assistance of counsel is typically raised through a motion to

reopen, which can be brought before either the BIA or the IJ

directly." Saakian, 252 F.3d at 25. We review the BIA's denial of

a motion to reopen for abuse of discretion. See Zeru, 503 F.3d at

71; Wang, 367 F.3d at 26-27. 
To the extent that Barrientos makes a second due process 5

argument regarding the IJ's conduct of the hearing, we also deny

review. Barrientos briefly suggests that the IJ's conduct of the

hearing deprived her of due process because he "fail[ed] to re-set

the hearing to allow [Barrientos] to obtain competent

representation or to allow [Barrientos] to prepare [her] case more

fully with [her] attorney." We review such a claim de novo. See

Aguilar-Solis v. INS, 168 F.3d 565, 568 (1st Cir. 1999). The IJ's

insistence that counsel proceed in the face of counsel's statement

that he was not prepared certainly draws our attention. However,

we conclude that, in this case, this decision fell within the IJ's

"broad (though not uncabined) discretion over the conduct of trial

proceedings." Id. 

We also find no abuse of discretion in the BIA's conclusion

that Barrientos failed to comply with the procedural requirements

in effect at the time the appeal was filed for an ineffective

assistance claim, as set forth in Matter of Lozada, 19 I. & N. Dec.

637 (BIA 1988). See Beltre-Veloz v. Mukasey, 533 F.3d 7, 10 (1st

Cir. 2008).

-7-

Former counsel's statement to the IJ that he was

unprepared to present the asylum claim certainly raises a serious

question as to his competence. In addition, the paltry supporting

evidence submitted by him on Barrientos' behalf raises further

concerns. Despite these concerns, we deny Barrientos' petition for

review on due process grounds because she has not put forth any

argument that former counsel's performance resulted in a reasonable

probability of prejudice. Indeed, she has failed to suggest any

facts, argument, or documentary evidence not submitted that might

have produced a different outcome as to her asylum claim.

Essentially, it appears she would have us remand for further

proceedings on the exact same claim and facts already presented and

denied. This falls far short of the required showing of

prejudice. 

5
For country conditions, the IJ and the BIA relied on the U.S. 6

State Department Country Report on Guatemala (2006), submitted by

Barrientos and admitted into evidence by the IJ. 

-8-

B. Asylum Claim

Having reviewed the record carefully, we also deny

Barrientos' petition for review of the BIA's dismissal of her

asylum claim. We review only for "substantial evidence," and will

not reverse unless "'the record evidence would compel a reasonable

factfinder to make a contrary determination.'" Guzman v. INS, 327

F.3d 11, 15 (1st Cir. 2003) (quoting Aguilar-Solis, 168 F.3d at

569). We find nothing in the record approaching such compelling

evidence to the contrary.

Even assuming that the record compelled the conclusion

that the guerrillas' threat against Barrientos amounted to past

persecution, the record does not compel (or even suggest) the

conclusion that Barrientos has an objective well-founded fear of

future persecution given that the threat against her occurred over

seventeen years ago, the husband the guerrillas were pursuing has

been deceased since 1995, Guatemala's civil war has concluded and

the country has transitioned to a multi-party democracy, and 6

Barrientos offered no reason she would be unable to relocate to

another part of the country where her former husband would be

unknown. See, e.g., Yatskin v. INS, 255 F.3d 5, 9 (1st Cir. 2001)
Because Barrientos does not meet the asylum standard, we need 7

not address her petition for review as to withholding, which

requires the higher showing of a clear probability of persecution.

See Aguilar-Solis, 168 F.3d at 569 n.3; see also Ang v. Gonzales,

430 F.3d 50, 58 (1st Cir. 2005). 

-9-

(outlining the standard for asylum). We thus deny Barrientos'

petition for review as to the asylum claim.7

III. Conclusion

For the foregoing reasons we deny Barrientos' petition

for review.