Not for Publication in West's Federal Reporter

 Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals

For the First Circuit

No. 03-1689

ELKIN EDISSON MURIEL VELASQUEZ; OLGA LUCIA VALENCIA QUINCENO,

JULIAN E. MURIEL VALENCIA; MELISA MURIEL VALENCIA, and

VANESSA MURIEL VALENCIA,

Petitioners,

v.

JOHN ASHCROFT, ATTORNEY GENERAL,

Respondent.

ON PETITION FOR REVIEW FROM AN ORDER OF 

THE BOARD OF IMMIGRATION APPEALS

Before

 Boudin, Chief Judge,

Campbell, Senior Circuit Judge,

and Lynch, Circuit Judge.

Walter J. Gleason on brief for petitioner.

Anthony C. Payne, Attorney, Office of Immigration Litigation,

Civil Division, United States Justice Department, Peter D. Keisler,

Assistant Attorney General, Civil Division, and David V. Bernal,

Assistant Director, on brief for respondent.

August 10, 2004
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CAMPBELL, Senior Circuit Judge. This is petition for

review of an order of the Board of Immigration Appeals ("Board"),

brought by members of the same family, seeking to overturn orders

for their removal from the United States to their home country of

Colombia. We affirm the order of the Board. 

As the Immigration and Naturalization Service ("INS") has

determined, the "lead file" is that of Elkin Edisson Muriel

Velasquez; the other appellants are all members of his family, and

their claims for asylum, withholding of removal, and protection

under the Convention Against Torture, rise or fall on the merits of

Velasquez's like claims. We accordingly focus on the facts and

merits of Velasquez's case, these being determinative of the

others' as well. 

Velasquez was most recently admitted to the United States

on July 9, 1996 on a nonimmigrant business visa. His visa expired,

but he nonetheless remained in this country. On December 22, 1999,

the INS commenced removal proceedings against him by issuing a

Notice to Appear charging Velasquez with removability pursuant to

8 U.S.C. § 1227(a)(1)(B) as an alien who remained in the United

States for a time longer than permitted. On August 18, 1999, James

C. Dragon, an attorney, prepared and filed with the INS an

application on behalf of Velasquez for asylum, withholding of

removal, and protection under the Convention Against Torture.

Represented by Dragon, Velasquez appeared on March 7, 2000 before
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an Immigration Judge ("IJ"), conceded removability, and entered his

asylum application and supporting documents. On May 4, 2000, at a

hearing before an IJ, Velasquez testified to the following effect.

Velasquez owned a store in Itagui, Colombia between 1994

and December of 1996. During that time, he visited the United

States on numerous occasions on visitor's visas. In December of

1995, members of an organization known as Populares Milicias

physically assaulted him and requested that he pay to them a "war

tax" so that he could receive protection from theft or further

violence. He paid the war tax several times, the payments totaling

8 million pesos. At one point, he was unable to pay the war tax,

and he thereafter suffered another physical assault and a store

robbery. He reported the incidents to the police, who installed an

internal alarm to curb further robberies. After its installation,

Velasquez suffered no further physical assaults or robberies.

Nevertheless, he feared the Populares Milicias and decided in April

of 1996 that he wanted to stay in the United States indefinitely

until conditions improved in Colombia. He returned to the United

States in July of 1996 and remained beyond the amount of time

permitted in his visa. In "the middle of 1998" friends and family

members called Velasquez stating that people, presumably members of

Populares Milicias, were asking about his whereabouts. By December

of 1998, he had given up hope of ever returning safely to Colombia,

so he decided to seek information regarding his ability to stay
1Section 1158(a)(1) states, "[a]ny alien who is physically

present in the United States or who arrives in the United States.

. . may apply for asylum . . . ." Section 1158(a)(2)(B) states,

however, that "paragraph (1) shall not apply to an alien unless the

alien demonstrates by clear and convincing evidence that the

application has been filed within 1 year after the date of the

alien's arrival in the United States."

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legally in the United States. At that time, upon the advice of a

friend, he met "Mr. Ansara," whom he believed could help him with

his immigration case. While Velasquez referred to Ansara as a

lawyer, he conceded that Ansara never told him he was a lawyer.

After this initial meeting, Velasquez was able to meet with Ansara

only one more time before Ansara disappeared. Four months after

discovering Ansara's disappearance, Velasquez retained Dragon as

his attorney. 

Based on this testimony, Dragon argued to the IJ that

Velasquez's asylum application was not subject to the one-year

filing deadline set forth in 8 U.S.C. § 1158(a)(2)(B)1 because of

changed and extraordinary circumstances. 8 U.S.C. § 1158(a)(2)(D)

(providing exceptions to one-year filing deadline when petitioner

has established "changed circumstances" or "extraordinary

circumstances"). In particular, Velasquez argued that since he

began to realize only in the summer of 1998 (when he learned that

members of Populares Milicias were still looking for him) that the

country conditions in Colombia had changed such that his problems

there were not going to abate, it was impossible for him to have

filed an application for asylum by the one-year deadline, which
2The basis for the IJ's conclusion that the one-year deadline

expired on April 1, 1998 does not appear in the record, nor is it

explained in the briefs. Possibly the arrival dates of other

family members are relevant. The parties, including the

government, do not dispute that the deadline expired on that date,

hence we accept it as controlling.

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expired on April 1, 1998.2 He further argued that these

constituted extraordinary circumstances, or events beyond

Velasquez's control, that made it impossible for Velasquez to meet

the filing deadline. He noted that Velasquez filed his asylum

application in July of 1999, which he said was shortly after these

developments came to light. 

At the end of the hearing, on May 4, 2000, the IJ issued

her oral decision. She concluded that Velasquez had established no

basis for her to apply the changed or extraordinary circumstances

exceptions to the one-year deadline for asylum applications.

Accordingly, she pretermitted Velasquez's asylum application

pursuant to 8 U.S.C. § 1158(a)(2)(B). The IJ, nevertheless, went

on "in the alternative" to consider the merits of the asylum claim,

together with the withholding of removal and Convention Against

Torture claims, which did not have specific filing deadlines. The

IJ commented that, "[m]uch of the evidence, essentially, is the

same for all three forms of relief . . . . [Velasquez] stated that

he had no additional evidence on the issue of withholding or relief

under Article 3 of the Convention Against Torture."
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The IJ rejected Velasquez's contention that he was

persecuted for his membership in a particular social group or for

his political opinion, requirements set out in the INS's relevant

regulation, 8 C.F.R. § 208.13(a). Threats and injuries at the

hands of the Populares Milicias were not, in her view, shown to

have been on account of his political opinion. Nor did she find

that Velasquez had shown he belonged to a particular "social group"

-- at most, he was a member of the merchant class, which was not

enough. 

Most importantly, the IJ questioned the consistency of

Velasquez's testimony. She wondered whether he truly feared

Populares Milicias in light of his willingness to repeatedly return

to Colombia even after he was forced to pay the war tax. In any

event, having been both assaulted and threatened as early as in

1995, he was well aware of that group's threat several years prior

to the expiration of the time for his seeking asylum. She further

stated:

As to [Velasquez's] credibility, I find that

he may be telling the truth about these

various assaults; he does have some police

reports in corroboration. The respondent,

however, I believe is not credible when he

makes wild speculations such as the people, in

fact, who had extorted from him. There's no

foundation for that . . . In general, I do not

find the respondent to be particularly

credible.
3While the motion was styled as a "Motion to Reopen," it

appears also to have been a motion for reconsideration as, in

addition to having raised new facts that would allegedly merit

reopening, it contained arguments that the Board erred as a matter

of fact or law. 8 C.F.R. § 1003.2(c) ("A motion to reopen

proceedings shall state the new facts that will be proven at a

hearing to be held if the motion is granted and shall be supported

by affidavits or other evidentiary material."); Zhang v. INS, 348

F.3d 289, 293 (1st Cir. 2003) ("The purpose of a motion to

reconsider is not to raise new facts, but to demonstrate that the

[Board] erred as a matter of law or fact."). The Board, itself,

interpreted the motion as a motion to "reopen and reconsider." In

keeping with the Board's reading of Velasquez's motion, we shall

treat it as if it were two motions -- a motion to reopen and a

motion to reconsider.

4It does not appear, and Velasquez does not contend, that

Dragon acted as Velasquez's attorney after having been disbarred.

Dragon was disbarred on August 23, 2002 -- between the filing of

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In the IJ's opinion, Velasquez and his family relocated to the

United States, not out of fear, but because it provided better

"prospects."

The IJ concluded that Velasquez was not eligible for

asylum, withholding of removal, or relief under the Convention

Against Torture. She denied Velasquez's application and ordered

his removal to Colombia. Velasquez timely appealed to the Board.

On November 19, 2002, the Board affirmed the IJ's order without

opinion. Velasquez did not petition this Court for review of the

Board's affirmance. 8 U.S.C. § 1252(b)(1). However, on December

17, 2002, Velasquez timely filed with the Board a motion styled as

one to reopen.3 Velasquez argued that his discovery from a

November 25, 2002 letter that attorney Dragon had been disbarred on

August 23, 20024 constituted a "new fact" under 8 C.F.R. §
Velasquez's initial appeal from the IJ's order to the Board in June

of 2000 and the issuance of the Board's affirmance of that order on

November 19, 2002. On November 25, 2002, less than a week after

the Board's ruling, Velasquez received the letter informing him of

Dragon's disbarment. Velasquez immediately retained Walter Gleason

as his new attorney. Gleason then filed the motion to reopen and

reconsider addressed to the Board.

Velasquez does not argue that Dragon is to blame for his

failure to file a petition for review of the Board's November 19,

2002 order. Indeed, it appears that he had retained Gleason prior

to the expiration date to file such a petition. 8 U.S.C. §

1252(b)(1)(generally allowing 30 days after date of order of

removal for filing of petition for review of order).

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103.4(a)(2) meriting reopening. He further argued that the IJ

erred as a matter of law in denying the asylum and related

applications. On April 17, 2003, the Board denied the motion, and

Velasquez timely petitioned for review by this Court. 8 U.S.C. §

1252(b).

I. Motion to Reopen

We first review the Board's denial of Velasquez's motion

to reopen. 

A motion to reopen proceedings shall not be

granted unless it appears to the Board that

evidence sought to be offered is material and

was not available and could not have been

discovered or presented at the former hearing;

nor shall any motion to reopen for the purpose

of affording the alien an opportunity to apply

for any form of discretionary relief be

granted if it appears that the alien's right

to apply for such relief was fully explained

to him or her and an opportunity to apply

therefore was afforded at the former hearing,

unless the relief is sought on the basis of

circumstances that have arisen subsequent to

the hearing.
5Velasquez argues we should not defer to the Board's statutory

interpretation and, instead, should hold the Board to "the

fiduciary standard of responsibility to immigrants -- the highest

duty recognized under law." As Velasquez cites no authority for

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8 C.F.R. § 1003.2(c), formerly codified in 8 C.F.R. § 3.2(c); see

also Zhang, 348 F.3d at 292 (stating, "Courts recognize two

independent, but non-exclusive grounds on which the [Board] may

deny a motion to reopen: (1) failure to establish a prima facie

case, and (2) failure to introduce previously unavailable, material

evidence.") (citing Fesseha v. Ashcroft, 333 F.3d 13, 20 (1st Cir.

2003)). Subject to these and other limitations, a motion to reopen

may be granted if the alien demonstrates that he or she was

statutorily eligible for such relief prior to the entry of the

administratively final order of deportation. 8 C.F.R. § 1003.2(c).

The decision to grant or deny a motion to reopen or

reconsider is within the discretion of the Board, and the Board has

discretion to deny a motion to reopen even if the moving party has

made out a prima facie case for relief. 8 C.F.R. § 1003.2(a),

formerly codified in 8 C.F.R. § 3.2(a). Accordingly, we only

overturn the Board's ruling for an abuse of discretion. Zhang, 348

F.3d at 292. 

Under the abuse of discretion standard, the Board's legal

conclusions are reviewed de novo, according due weight to the

Board's expertise in construing the statutory framework that it

administers.5 Radkov v. Ashcroft, No. O2-2666, 2004 U.S. App.
this proposition, we decline to adopt that standard here. 

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LEXIS 14314, *5 (July 14, 2004). "In the immigration context, as

elsewhere, an error of law on the trier's part comprises an abuse

of discretion." Id.

Here, Velasquez argues the case should be reopened

because he later discovered he had received ineffective assistance

of counsel denying him his rights under both the Sixth Amendment

and the Due Process Clause. The Board rejected this argument,

finding that Velasquez had received a full and fair hearing before

an IJ, in which he was given the opportunity to apply for any

relief for which he was eligible, and because it could find in the

record no violations of his rights to due process and no prejudice

caused by the representation afforded by his counsel. The Board

did not abuse its discretion. 

We address only Velasquez's due process claim; as

"[t]here is no Sixth Amendment right to counsel in deportation,

which is a civil proceeding, but several courts of appeals

(including this one) have said that where counsel does appear for

the respondent, incompetence in some situations may make the

proceeding fundamentally unfair and give rise to a Fifth Amendment

due process objection." Hernandez v. Reno, 238 F.3d 50, 55 (1st

Cir. 2001) (citing Lozada v. INS, 857 F.2d 10, 13 (1st Cir. 1988)).

A proceeding is fundamentally unfair when the alien is prevented
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from reasonably presenting his or her case. Id.

At the time Dragon represented him, Dragon was still a

member of the bar, qualified to act as an attorney. There is no

evidence in the record relative to the reasons for disbarment or

otherwise that could indicate Dragon's peculiar incompetence to act

in Velasquez's case while still licensed (the disbarment was for

misconduct elsewhere). 

Velasquez provided no specifics to the Board reflecting

incompetence by counsel that interfered with the reasonable

presentation of his case. He noted "problems" with Dragon that he

said compounded a prior bad experience with non-attorney Ansara.

Velasquez accused Dragon of distraction (seemingly ascribed to

Dragon's own disbarment proceedings, then in progress), diminished

commitment, and lack of zealous advocacy, but provided little or

nothing tangible to support these assertions. Velasquez also adds

that Dragon's difficulty understanding Spanish handicapped him, but

this argument would not amount to evidence that "was not available

and could not have been discovered or presented at the former

hearing" as is required by 8 C.F.R. § 1003.2(c). 

Velasquez argues that he is not required to provide

specific examples of prejudice because the denial of effective

assistance was so clear in the circumstances and the harm --

removal -- was facially demonstrable. In doing so, he relies on
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our statement in U.S. v. Loasiga, 104 F.3d 484, 488 (1st Cir. 1997)

that, "[p]erhaps there may be deportations where a denial of

counsel was so flagrant, and the difficulty of proving prejudice so

great, as to argue for presuming harm." While we have yet to

answer whether such a situation exists, we need not do so here

because Velasquez in fact had counsel and there was no showing that

counsel did not provide effective assistance. Dragon elicited from

Velasquez testimony germane both to the issue of whether the oneyear deadline for asylum claims applied and to the merits of

Velasquez's application. He further provided documents in support

of Velasquez's testimony, including the application materials that

he had prepared, country reports for Colombia released by the

United States Department of State in 1998, 1999, and 2000, releases

from Amnesty International, an affidavit from Velasquez, letters

from a former employer and from a friend of Velasquez, police

reports, travel documents, and newspaper articles. 

Accordingly, the circumstances pertaining to Dragon and

his subsequent disbarment provide no reason for us to find that the

Board abused its discretion in denying the motion to reopen.

II. Motion to Reconsider

We turn next to Velasquez's imputed motion to reconsider.

"A motion to reconsider shall state the reasons for the motion by

specifying the errors of fact or law in the prior Board decision

and shall be supported by pertinent authority." 8 C.F.R. §
6Although not raised by the parties, there is some question as

to whether this Court has jurisdiction to consider Velasquez's

arguments concerning 8 U.S.C. § 1158. As mentioned, the IJ

pretermitted Velasquez's asylum application pursuant to section

1158(a)(2)(B). Section 1158(a)(3) provides that "[n]o Court shall

have jurisdiction to review any determination of the Attorney

General under [inter alia, section 1158(a)(2)(B)]." 

In Haoud v. Ashcroft, 350 F.3d 201, 205 (1st Cir. 2003) we

discussed the application of section 1158(a)(3) to our review of

a Board decision on direct appeal from an IJ's determination under

section 1158(a)(2)(B). There, we stated "that 8 U.S.C. §

1158(a)(3)could bar our review of the IJ's determination of the

timeliness of Haoud's asylum application . . . ." 

We need and do not decide whether under Haoud we lack

jurisdiction over Velazquez's section 1158 arguments. Velasquez's

arguments concerning the timeliness of his asylum claim are plainly

without merit. We, therefore, see no need to delve into a

jurisdictional issue neither raised nor briefed by either party.

See, e.g., Restoration Pres. Masonry, Inc. v. Grove Eur. Ltd., 325

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1003.2(b)(1), formerly codified as 8 C.F.R. § 3.2(b)(1). Again, we

review the Board's determination solely for an abuse of discretion.

Zhang, 348 F.3d at 293; Nascimento v. INS, 274 F.3d 26, 28 (1st

Cir. 2001). "In the reconsideration context, we will find an abuse

of discretion if the denial was made without a 'rational

explanation, inexplicably departed from established policies, or

rested on an impermissible basis' (such as race)." Zhang, 348 F.3d

at 293 (quoting Nascimento, 274 F.3d at 28).

In his brief to this Court, Velasquez argues that the IJ

erred in three respects: (1) concluding that this case is not

subject to the extraordinary circumstances exception of 8 U.S.C. §

1158(a)(2)(D) given the delay caused by Ansara; (2) concluding this

case is not subject to the changed circumstances exception of 8

U.S.C. § 1158(a)(2)(D)6 given especially State Department documents
F.3d 54, 59 (1st Cir. 2003) (courts may, in appropriate

circumstances, reserve difficult questions of statutory

jurisdiction when the case could alternatively be resolved on the

merits in favor of the same party). 

7Velasquez also argues that the IJ erred in failing to

recognize an "acquiescence" argument under the Convention Against

Torture. He did not raise this argument to the Board, however, so

it is waived. Cf. Zhang, 348 F.3d at 293 (holding that Board did

not abuse discretion by concluding that arguments developed for

first time on reconsideration appeal were waived).

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submitted by Velasquez; (3) and placing the burden on him, rather

than the government, to prove that internal relocation in Colombia

would not be reasonable when she considered his asylum claim.7

While the Board did not individually address each of these

arguments in denying Velasquez's motion, it implicitly resolved

them, stating, "[we] . . . note that in our previous decision we

affirmed the Immigration Judge's decision denying the respondents'

applications because they failed to meet their burden to credibly

prove eligibility for the relief they requested. We do not find

any basis to disturb our previous decision." We turn to each of

Velasquez's arguments.

 First, the Board was well within its rights to uphold

the IJ's conclusion that the extraordinary circumstances exception

to the one-year deadline for asylum applications set forth in 8

U.S.C. § 1158(a)(2)(D) did not apply here. Section 1158(a)(2)(D)

states in pertinent part, "[a]n application for asylum of an alien

may be considered . . . if the alien demonstrates . . .
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extraordinary circumstances relating to the delay in filing an

application within the [one-year deadline]." Based on Velasquez's

inconsistent testimony, the IJ concluded that the alleged

extraordinary circumstances -- meeting an individual whom he

mistakenly believed was an attorney and later discovering that the

individual had disappeared -- began at the earliest in the summer

of 1998, which was after the deadline had expired on April 1, 1998.

The record evidence supports the IJ's finding. The IJ was,

therefore, correct in concluding that these circumstances did not

constitute extraordinary circumstances relating to the delay in

filing an application within the one-year deadline. 8 U.S.C. §

1158(a)(2)(D).

Second, the Board justifiably rejected Velasquez's

argument that the IJ failed to give due weight to the submitted

State Department documents in determining that the changed

circumstances exception to the one-year deadline in 8 U.S.C. §

1158(a)(2)(D) did not apply here. In his brief to us, Velasquez

argues that these documents "support the premise that Colombia had

changed politically between 1996 and 1998 into what the Department

has calculated to be one of the most dangerous places on the

planet", and, therefore, the IJ's alleged failure to give weight to

these documents indicates that she improperly interpreted section

1158(a)(2)(D). 
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In addition to the "extraordinary circumstances"

provision just mentioned, section 1158(a)(2)(D) also provides,

"[a]n application for asylum may be considered . . . if the alien

demonstrates . . . the existence of changed circumstances which

materially affect the applicant's eligibility for asylum . . . ."

During the hearing, Velasquez argued that his discovery that people

were still looking for him in 1998 constituted changed

circumstances under the statute. He did not refer to the State

Department documents as constituting additional or independent

grounds for concluding that changed circumstances existed. These

were submitted at the beginning of the hearing without articulation

of their relevance. In response to the argument that was

articulated, the IJ stated:

I find the assertion that someone was still

looking for him in 1998 and that is why he did

not file for asylum earlier not to constitute

changed circumstances. It appears to be,

assuming the truth of it although there's no

foundation particularly for it, that this

earlier pattern on which he bases his asylum

claim had begun back in April of 1995. So

[Velasquez] does not meet the burden on that

ground.

We find the conclusion to be reasonable. Velasquez testified to

having been assaulted by the Populares Milicias in 1995. He also

testified to wanting to stay in the United States indefinitely in

April of 1996 because of conditions in Colombia. We see no abuse

of discretion in the IJ's conclusion that Velasquez was, in effect,

fully aware of the basis of his asylum claim well before April 1,
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1998, when the one-year period for seeking asylum expired. The IJ

was entitled to conclude that circumstances already existing and

known to Velasquez prior to the one-year deadline were not changed

simply because of word that the Populares Milicias members were

still around and possibly inquiring for him. 8 U.S.C. §

1158(a)(2)(D). As Velasquez's prior beatings and the extortion

earlier practiced put him on notice of the risky conditions in

Colombia that particularly concerned him, the State Department

documents allegedly indicating an increase in lawlessness generally

added little.

Lastly, as Velasquez's asylum claim was properly

pretermitted, 8 U.S.C. § 1158(a)(2)(B), there is no need to examine

further into its possible merits. Accordingly, we do not review

Velasquez's third argument, which concerns the manner in which the

IJ handled "in the alternative" the merits of his asylum claim. As

Velasquez offers in his brief no cognizable arguments pertaining to

either the withholding of removal or Convention Against Torture

claims, we proceed no further.

Affirmed.