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