                                                                         NOT PRECEDENTIAL

                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT
                                 ________________

                                    Nos. 14-2995 & 14-4653
                                      ________________

                                PANFILO BOLANOS SILVA,
                                                  Petitioner

                                                 v.

               ATTORNEY GENERAL UNITED STATES OF AMERICA,
                                             Respondent
                            ________________

                         On Petition for Review of a Final Order
                           of the Board of Immigration Appeals
                     Immigration Judge: Honorable Alberto J. Riefkohl
                                   (No. A088-083-668)
                                   ________________

                         Submitted Under Third Circuit LAR 34.1(a)
                                    November 19, 2015

             Before: AMBRO, HARDIMAN, and NYGAARD, Circuit Judges

                                (Opinion filed: January 8, 2016)

                                      ________________

                                          OPINION*
                                      ________________




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute
binding precedent.
AMBRO, Circuit Judge


       In this consolidated appeal, Panfilo Bolanos Silva, a native and citizen of Mexico,

petitions for review of two decisions by the Board of Immigration Appeals (“BIA”). The

first denied his first motion to reopen removal proceedings and his motion to remand on

the basis of ineffective assistance of counsel.1 The second denied his motion to

reconsider the BIA’s initial decision and his second motion to reopen removal

proceedings. For the reasons that follow, we deny his petitions.

                                                I.

       In 2010, the Department of Homeland Security filed a Notice to Appear, charging

that Bolanos Silva was subject to removal from the United States. He was represented by

attorney Stephen Traylor, who conceded that Bolanos Silva was removable and requested

a discretionary grant of voluntary departure under 8 U.S.C. § 1229c(a). Traylor did not

request any other form of relief from removal. The Immigration Judge (“IJ”) granted the

request, and Bolanos Silva waived his right to appeal the IJ’s decision.

       Before the voluntary departure period expired, Bolanos Silva, with attorney John

A. Nicelli now acting as his counsel, moved to reopen removal proceedings so that he

might apply for asylum-related relief. He claimed, among other things, that he feared

returning to Mexico because he anticipated that he and his mentally disabled daughter

would face difficulties, including discrimination, ostracism, and possibly even violence.

1
 Motions to remand and motions to reopen are “functionally identical,” Fadiga v. Att’y Gen.,
488 F.3d 142, 145 n.5 (3d Cir. 2007) (alterations in original) (quoting Korytnyuk v. Ashcroft, 396
F.3d 272, 282 (3d Cir. 2005)), but for the sake of clarity we refer to Bolanos Silva’s self-styled
“motion to remand” as such.
                                                2
He further claimed that Traylor had provided ineffective assistance because he failed to

advise Bolanos Silva that he had a viable claim for asylum-related relief.

         The IJ denied the motion as untimely because it was filed more than 90 days after

his prior decision. He further explained that Bolanos Silva presented neither material

evidence of changed country conditions to excuse his untimely filing, see 8 U.S.C.

§ 1229a(c)(7)(C)(ii), nor previously unavailable evidence to support his claim for relief,

see 8 C.F.R. § 1003.23(b)(3). The IJ also noted that Bolanos Silva’s ineffective

assistance claim could not succeed because he presented no evidence of attempts to

comply with the procedural requirements of In re Lozada, 19 I. & N. Dec. 637 (BIA

1988).

         Bolanos Silva timely appealed the IJ’s decision, arguing that the IJ erroneously

failed to consider evidence of changed country conditions. While that appeal was

pending before the BIA, Bolanos Silva, now with attorney Visuvanathan Rudrakumaran

acting as his counsel, moved to remand on two grounds: (1) that Traylor rendered

ineffective assistance by failing to inform Bolanos Silva of his viable claims for asylum-

related relief; and (2) that Nicelli rendered ineffective assistance by failing to comply

with the procedural requirements of In re Lozada.

         The BIA dismissed Bolanos Silva’s appeal and denied his motion to remand. The

BIA affirmed the IJ’s conclusion that Bolanos Silva presented neither material evidence

of changed country conditions nor previously unavailable evidence to support his claim

for relief. The BIA also explained that Bolanos Silva’s ineffective assistance claims

could not succeed because he failed to comply with the procedural requirements of In re

                                              3
Lozada with respect to both his initial ineffective assistance claim involving Traylor as

well as his new ineffective assistance claim involving Nicelli. Bolanos Silva then filed a

petition for review of the BIA’s decision.

       After filing his petition for review, Bolanos Silva filed two more motions with the

BIA. The first was a motion to reconsider it’s decision, arguing that, in his case,

compliance with the procedural requirements of In re Lozada was neither required nor

possible. The second was another motion to reopen based on the ineffective assistance

provided by Traylor, Nicelli, and Rudrakumaran. In an attempt to cure the deficiencies

identified in the BIA’s prior decision, the second motion documented Bolanos Silva’s

efforts to satisfy the procedural requirements of In re Lozada.

       The BIA denied the motions. It found that Bolanos Silva satisfied the procedural

requirements of In re Lozada, but explained that his ineffective assistance claim could not

succeed because he failed to demonstrate that he was prejudiced by his counsel’s

ineffective assistance. Based on the record before it, the BIA concluded that, even if

Bolanos Silva might face discrimination and ostracism if he returned to Mexico, there

was no evidence he would face persecution or torture. Because Bolanos Silva had to

present evidence relating to persecution or torture to secure relief from removal, the BIA

concluded that there was no reasonable likelihood that the outcome of his removal

proceedings would have been different had counsel helped him apply for asylum-related

relief. Thereafter, Bolanos Silva petitioned for review of that decision from the BIA. His

two petitions for review were consolidated in the matter before us.



                                             4
                                              II.

       We have jurisdiction under 8 U.S.C. § 1252(a). We review questions of law,

including the BIA’s “determination of an underlying procedural due process claim,” de

novo. Fadiga v. Att’y Gen., 488 F.3d 142, 153-54 (3d Cir. 2007); Borges v. Gonzales,

402 F.3d 398, 404 (3d Cir. 2005). We review the BIA’s denial of a motion to reopen for

abuse of discretion. Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004). Our review is

“highly deferential.” Id. We review the BIA’s findings of fact “to determine whether

they were supported by substantial evidence” and will only reverse the BIA’s denial of a

motion to reopen if it is “arbitrary, irrational, or contrary to law.” Sevoian v. Ashcroft,

290 F.3d 166, 168, 174 (3d Cir. 2002) (quoting Tipu v. INS, 20 F.3d 580, 582 (3d Cir.

1994)).

                                             III.

       “A claim of ineffective assistance of counsel in removal proceedings is cognizable

under the Fifth Amendment—i.e., as a violation of that amendment’s guarantee of due

process.” Fadiga, 488 F.3d at 155. A claim of ineffective assistance, if properly

established, could constitute proper grounds for reopening a removal proceeding. See Xu

Yong Lu v. Ashcroft, 259 F.3d 127, 132 (3d Cir. 2001).

       To prevail on his claim for ineffective assistance in this case, Bolanos Silva must

show “(1) that he was prevented from reasonably presenting his case and (2) that

substantial prejudice resulted.” Fadiga, 488 F.3d at 155 (internal quotation marks

omitted). Substantial prejudice here is “a ‘reasonable likelihood that the result would



                                              5
have been different if the error[s] . . . had not occurred.’” Id. at 159 (alterations in

original) (quoting United States v. Charleswell, 456 F.3d 347, 362 (3d Cir. 2006)).

       The BIA determined that Bolanos Silva did not satisfy the prejudice prong of his

ineffective assistance claim because he failed to prove that he “had viable claims to

asylum and withholding of removal based on being the Mexican parent of a mentally

retarded daughter” or that he had “a viable claim [for protection under the CAT] that he

and his daughter would more likely than not be tortured upon return to Mexico by the

Mexican Government or that the Government would be willfully blind to any torturous

acts which might be committed against them by third parties.” (1 App. 4 (alteration in

original).)

       Bolanos Silva’s main argument is that the BIA applied too rigorous a standard of

prejudice in denying his second motion to reopen.2 Citing our decision in Fadiga, in

which we explained that an alien need not show that a different outcome was more likely

than not to prevail on an ineffective assistance claim, 488 F.3d at 160-61, Bolanos Silva

argues that the BIA erroneously required him to demonstrate that he would more likely

than not be persecuted and/or tortured upon return to Mexico. We disagree. The BIA

rightly concluded that Bolanos Silva seeks relief from removal based on fears of

discrimination and ostracism (which do not rise to the level of persecution, see Fatin v.


2
  Although Bolanos Silva also petitioned for review of the BIA’s denial of his first motion to
reopen, he waives any claim of error with respect to that motion. (Pet.’s Reply Br. 2 (“Thus the
only issue before this court is whether the BIA’s finding that the petitioner failed to show
prejudice [sic].”).) He has also waived any claim of error with respect to the BIA’s decision on
the issue of changed country conditions. Id. at 1-2. Even if he had not waived those challenges,
he would lose on the merits because the BIA did not abuse its discretion.
                                               6
INS, 12 F.3d 1233, 1240 (3d Cir. 1993)), as well as generalized fears of violence in

Mexican mental health institutions (which are not grounds for relief from removal under

the circumstances, see Auguste v. Ridge, 395 F.3d 123, 154 (3d Cir. 2005)). Thus, even if

Bolanos Silva presented sufficient evidence to prove the truth of his assertions, he would

not be entitled to relief.

       Bolanos Silva’s reliance on our decision in Fadiga is misplaced because the BIA’s

decision in that case is distinguishable from the BIA’s decision here. In Fadiga, the BIA

denied the alien’s motion to reopen based on its finding that he “failed to demonstrate his

eligibility for relief.” 488 F.3d at 159-60. Here, the BIA denied Bolanos Silva’s second

motion to reopen based on its conclusion that he failed even to state a viable claim for

relief. (1 App. 4.) In other words, the BIA’s decision here was not based on its

conclusion that Bolanos Silva could not prove his case, but rather that, even if he could

prove everything that he claimed, he would not be entitled to relief from removal.

       Notwithstanding his conclusory assertions that he would face persecution and/or

torture if he returns to Mexico, Bolanos Silva failed to state a sustainable claim for relief

from removal. In the absence of such a claim, Bolanos Silva cannot demonstrate a

reasonable likelihood that the result of his removal proceedings would have been

different absent counsel’s deficient performance. Counsel’s failure to put Bolanos Silva

on notice of non-sustainable claims for asylum-related relief cannot result in prejudice.

       Bolanos Silva also argues that the BIA ignored his evidence and failed to provide

a reasoned decision, but it is not “required to expressly parse each point or discuss each

piece of evidence presented” in order for us to be confident that it has “meaningfully

                                              7
considered the evidence and arguments” that he presented, Fei Yan Zhu v. Att’y Gen.,

744 F.3d 268, 272 (3d Cir. 2014). And the BIA’s decision is reasoned enough to permit

our meaningful review, see Miah v. Ashcroft, 346 F.3d 434, 439-40 (3d Cir. 2003). We

agree with the BIA that the arguments and evidence in the record speak to issues of

discrimination and prejudice rather than persecution and/or torture.

                              *      *       *      *      *

       We have considered Bolanos Silva’s remaining arguments and find them

unpersuasive. Thus, we deny his petitions for review.




                                             8
