         10-2308-ag
         Herrera v. Holder
                                                                                       BIA
                                                                               A073 542 349
                              UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT

                                    SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
     FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
     APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
     IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
     ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 13th day of September, two thousand eleven.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                     Chief Judge,
 9                JON O. NEWMAN,
10                DEBRA ANN LIVINGSTON,
11                     Circuit Judges.
12       _________________________________________
13
14       MARIO NELSON HERRERA,
15                Petitioner,
16
17                           v.                                   10-2308-ag
18                                                                NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _________________________________________
23
24       FOR PETITIONER:               Douglas B. Payne, New York, New
25                                     York.
26
27       FOR RESPONDENT:               Tony West, Assistant Attorney
28                                     General; John S. Hogan, Senior
29                                     Litigation Counsel; David H.
30                                     Wetmore, Trial Attorney, Office of
31                                     Immigration Litigation, United
32                                     States Department of Justice,
33                                     Washington, D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

 2   Board of Immigration Appeals (“BIA”) decision, it is hereby

 3   ORDERED, ADJUDGED, AND DECREED, that the petition for review

 4   is DENIED.

 5       Petitioner Mario Nelson Herrera, a native and citizen

 6   of Guatemala, seeks review of a May 19, 2010, decision of

 7   the BIA denying his motion to reopen.       In re Mario Nelson

 8   Herrera, No. A073 542 349 (B.I.A. May 19, 2010).       We assume

 9   the parties’ familiarity with the underlying facts and

10   procedural history of the case.

11       We review the BIA’s denial of a motion to reopen for

12   abuse of discretion.   See Kaur v. BIA, 413 F.3d 232, 233 (2d

13   Cir. 2005) (per curiam).   A movant claiming ineffective

14   assistance of former counsel must show that competent

15   counsel would have acted otherwise, and that the alien was

16   prejudiced by his counsel’s performance.       See Rabiu v. INS,

17   41 F.3d 879, 882-83 (2d Cir. 1994); Esposito v. INS, 987

18   F.2d 108, 111 (2d Cir. 1993).       In order to show actual

19   prejudice resulted from counsel’s failure to pursue certain

20   initiatives, the movant “must make a prima facie showing

21   that he would have been eligible for the relief and that he

22   could have made a strong showing in support of his

23   application.”   Rabiu, 41 F.3d at 882.

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 1       The BIA did not abuse its discretion in denying

 2   Herrera’s motion to reopen.    In concluding that Herrera

 3   failed to demonstrate that he was prejudiced by his former

 4   counsels’ failure to pursue asylum, withholding of removal,

 5   and relief under the Convention Against Torture (“CAT”) in

 6   either his removal proceedings or in a motion to reopen, the

 7   BIA reasonably relied on Herrera’s failure to identify any

 8   evidence establishing his prima facie eligibility for those

 9   forms of relief.   See id.    Herrera’s claim that he feared

10   persecution and torture based on general strife in Guatemala

11   and on the Guatemalan military’s single unsuccessful attempt

12   to forcibly recruit him were insufficient to establish his

13   prima facie eligibility for relief.     See INS v.

14   Elias-Zacarias, 502 U.S. 478, 482 (1992) (holding that “the

15   mere existence of a generalized ‘political’ motive

16   underlying...forced recruitment is inadequate to establish

17   (and, indeed, goes far to refute) the proposition that [an

18   alien] fears persecution on account of political opinion, as

19   § 101(a)(42) requires”); see also Pierre v. Gonzales, 502

20   F.3d 109, 118-19 (2d Cir. 2007) (agreeing with the BIA’s

21   holding that in order to demonstrate eligibility for CAT

22   relief, an applicant must submit evidence that his


                                     3
 1   anticipated torturers would specifically intend to cause him

 2   severe pain and suffering); Melgar de Torres v. Reno, 191

 3   F.3d 307, 314 n.3 (2d Cir. 1999) (recognizing that

 4   “[g]eneral violence in [a country] does not constitute

 5   persecution, nor can it form a basis for petitioner’s well-

 6   founded fear of persecution”).

 7       Moreover, contrary to Herrera’s contention, his

 8   cousin’s murder in Guatemala did not demonstrate Herrera’s

 9   prima facie eligibility for relief because that evidence did

10   not provide any details surrounding the murder and did not

11   indicate that Herrera and his cousin were similarly

12   situated.     See Jian Hui Shao v. Mukasey, 546 F.3d 138, 161,

13   172 (2d Cir. 2008).     Accordingly, because Herrera did not

14   demonstrate his prima facie eligibility for asylum,

15   withholding of removal, and CAT relief, the BIA did not

16   abuse its discretion in finding that he failed to establish

17   that he was prejudiced by his former counsels’ actions.        See

18   Rabiu, 41 F.3d at 882-83.

19       For the foregoing reasons, the petition for review is

20   DENIED.     As we have completed our review, any stay of

21   removal that the Court previously granted in this petition

22   is VACATED, and any pending motion for a stay of removal in


                                     4
1   this petition is DISMISSED as moot. Any pending request for

2   oral argument in this petition is DENIED in accordance with

3   Federal Rule of Appellate Procedure 34(a)(2), and Second

4   Circuit Local Rule 34(b).

5                               FOR THE COURT:
6                               Catherine O’Hagan Wolfe, Clerk
7
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