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Lorenzo v. Barr

United States Court of Appeals, Sixth Circuit

July 9, 2019

Gilberto Pablo Lorenzo, Petitioner,
v.
William P. Barr, Attorney General, Respondent.

          On Petition for Review from the Board of Immigration Appeals; No. A 096 151 319.

         ON BRIEF:

          Chelsea E. HaleyNelson, HALEYNELSON & HEILBRUN, LLP, Oakland, California, for Petitioner.

          Matthew B. George, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

          Before: CLAY, GILMAN, and KETHLEDGE, Circuit Judges.

          OPINION

          CLAY, CIRCUIT JUDGE.

         Gilberto Pablo Lorenzo appeals the decision of the Board of Immigration Appeals ("BIA") denying his motion to reopen based on changed country conditions and ineffective assistance of counsel. We have jurisdiction over Pablo's appeal under 8 U.S.C. § 1252(a)(1). Because the BIA failed to properly evaluate Pablo's undisputed, reasonably specific evidence, and because it applied the wrong legal standards with respect to his motion to reopen based on changed country conditions, we reverse and remand to the BIA to reconsider whether Pablo has demonstrated changed country conditions under the correct evidentiary and legal standards. However, we affirm the BIA's denial of Pablo's motion based on ineffective assistance of counsel because Pablo has failed to demonstrate that he acted with due diligence, as required to succeed on this claim.

         I. FACTUAL AND PROCEDURAL HISTORY[1]

         Pablo was born in 1985 in Todos Santos Cuchumatan, a small town in the Huehuetenango province in the Western Highlands of Guatemala. An indigenous Guatemalan, Pablo speaks the Mam language and minimal Spanish. Pablo lived in Guatemala until August of 2001 when he fled to the United States after being violently abused by his stepfather.

         Pablo settled with his brother in Grand Rapids, Michigan. A friend suggested that he see Lidia Marquez, who purportedly could help Pablo obtain papers that would enable him to remain in the United States. Lidia told Pablo that she could assist him, but not until Pablo sent her $500. Pablo did not understand much of what Lidia said because she only spoke Spanish, but Pablo trusted her and sent her the funds. Lidia helped Pablo prepare forms and, ultimately, obtain an interview with immigration officials, but said she could no longer assist Pablo after he received a letter requiring him to attend an immigration hearing in Detroit. Lidia told Pablo to obtain an attorney to represent him during the court proceeding.

         Pablo then contacted "Elias," a purported attorney in Holland, Michigan, who had been recommended to Pablo by a friend. Elias stated that he was an attorney and charged Pablo $500 to represent him. Pablo's first court date was scheduled for early 2003 in Detroit. Elias failed to show up. The court did not have a Mam interpreter, and Pablo could not understand much of what the judge said. After the hearing, Pablo contacted Elias, who said he had been unable to attend the hearing but that he could help Pablo if he paid an additional $1, 500. Pablo paid Elias the additional funds. But Elias failed to show up to a subsequent hearing. Nonetheless, Pablo continued to try to secure Elias's assistance and expected Elias to help him resolve his immigration case.

         Pablo's final immigration hearing took place on February 23, 2005. Elias again failed to show up. Unbeknownst to Pablo, his immigration case had been joined with that of his brother, Jose, and his brother's partner, Florentina. Florentina was represented by an attorney named David Koelsch. Pablo did not know that Koelsch also represented him because Pablo had never met Koelsch, and Pablo continued to believe that Elias was his attorney. During the hearing, Koelsch spoke with the judge, but Pablo did not understand the content of their discussion. After the hearing, Jose informed Pablo that the judge had denied each of their applications for asylum.

         A few months after the hearing, Pablo received a letter stating that his appeal had been denied. Prior to receiving the letter, Pablo did not know that anyone had filed an appeal on his behalf. Pablo attempted to contact Elias, but Elias did not answer his phone or return Pablo's calls. Pablo spoke with his brother about contacting Koelsch, but his brother did not know where Koelsch was or how to contact him. Pablo experienced fear and anxiety about his immigration status but did not know what to do or where to turn for help.

         In January 2009, Pablo was stopped by the police for a traffic violation and subsequently deported to Guatemala. Pablo went to live with his grandparents, indigenous farmers who owned a farm in the town of Todos Santos Cuchumatan. Prior to Pablo's return, a group of people from the nearby town of Chiantla had beaten his grandparents and destroyed their crops. In an attempt to stop the mistreatment, Pablo joined a land committee comprised of indigenous farmers and filed a report about the abuse with the mayor's office. But the police supported the assailants who had attacked his grandparents. On February 24, 2010, Pablo and a friend saw a police car and a group of people from Chiantla. The group said Pablo was "going to pay" because he had reported them. (Pablo Decl. at ¶ 29.) They took Pablo and his friend to an isolated place and beat them until Pablo passed out. They also threatened to kill Pablo if he continued to fight for indigenous farmers' land rights. In April 2010, fearing that he would be murdered by the group from Chiantla if he remained in Guatemala, Pablo fled to the United States.

         When Pablo returned to the United States, he did not contact immigration officials, seek legal assistance, or otherwise attempt to address his immigration status. Pablo wanted to forget about the abuse that he had experienced in Guatemala, and he feared being removed again.

         In September 2012, Pablo was again deported to Guatemala. This time, Pablo decided not to live with his grandparents because he feared further attacks and threats against his life. Instead, he settled in Guatemala's Southern Coast and found work on a farm called La Nueva Esperanza. The foremen were all "ladinos," i.e., non-indigenous Guatemalans, and they mistreated the farmers, most of whom, like Pablo, were indigenous. The foremen humiliated the indigenous workers, regularly calling them "stupid Indians" or "ignorant Indians." (Id. at ¶ 33.) They also beat the indigenous workers. Over time, this abuse intensified.

         Pablo helped form a union of the indigenous farm workers to address the abuse by the ladino foremen at La Nueva Esperanza. In May 2014, the union, comprised of four indigenous farmers, approached the owner; they discussed the mistreatment of indigenous farmers and demanded that the owner instruct his subordinates to stop the abuse. The owner stated that he would not tolerate a union on his farm and warned that if Pablo and his companions continued advocating for the rights of indigenous farmers, he would summon the police to "show the Indians their place." (Id. at ¶ 34.)

         The abuse of indigenous workers increased in severity. For example, in November 2014, the foremen accused an indigenous couple of not completing their work, and punished them by tying them to a post and brutally beating them with guns and sticks. Pablo and other workers attempted to intervene, but the farm owner's security officer warned Pablo that he would kill him if Pablo tried to stop the beating. The next day, Pablo took the couple to the hospital. Pablo reported the beating to a local "Peace Judge, "[2] who promised to speak to the owner but never did. When Pablo returned to the judge's office to inquire about why the judge had not spoken to the owner, the judge's secretary said that the judge had more important things to do and dismissed Pablo and his fellow workers as "just simple Indians." (Id. at ¶ 37.)

         Pablo helped form a larger group of indigenous farmers to protest the mistreatment by the foremen. On July 4, 2015, approximately 300 indigenous farm workers marched peacefully from La Nueva Esperanza to the center of Coatepeque, a nearby town. At approximately 2:30 pm, Guatemalan soldiers and National Police arrived and threw smoke bombs and water at the protesters. Pablo attempted to flee, but was apprehended by a group of soldiers and police. They forced Pablo into one of their trucks, where they pulled his hands behind his back and struck him repeatedly with their weapons while saying "Retarded Indian, this is what happens to you because you are protesting the farm owners." (Id.) ...


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