Ginna Alejandra Gutierrez-Mikan and her son, Colombian nationals, entered the United States in July 2021 and sought asylum, withholding of removal, and protection under the Convention Against Torture. They alleged that for twenty years, they were persecuted by the FARC guerrillas after refusing to pay extortion money, resulting in rape, the burning of their vehicle, and the murder of two uncles. Although they reported these crimes to Colombian police and were placed on a victim database, the FARC continued to harass them. The immigration judge denied their claims, finding that Gutierrez-Mikan failed to prove she belonged to a cognizable particular social group and that the Colombian government did not acquiesce to the torture. After a remand where the judge found the government was actively combating FARC, the Board of Immigration Appeals affirmed the denial. Gutierrez-Mikan appealed, arguing ineffective assistance of counsel and that the Board applied an incorrect legal standard regarding government acquiescence.
The court addressed two primary issues. First, regarding the ineffective assistance of counsel claim, the court explained that under Matter of Lozada, petitioners must substantially comply with procedural requirements, such as filing a bar complaint or explaining why they did not. The court rejected the petitioner's argument that Loper Bright v. Raimondo undermined Lozada. The court reasoned that Loper Bright concerns judicial deference to agency interpretations of ambiguous statutes, whereas Lozada requirements stem from the Board's broad discretion to fashion procedural rules for motions to reopen. Therefore, Loper Bright does not impact Lozada. Second, regarding the Convention Against Torture claim, the court found substantial evidence supported the Board's conclusion that the Colombian government did not acquiesce to FARC violence. The record showed the government had negotiated peace accords, outlawed FARC membership, and maintained a victim database. The court also addressed the petitioner's contention that the Board applied an improper 'complete failure' standard. The court clarified that the Board used that phrase only to describe the petitioner's arguments, not as a new legal test, and ultimately adopted the immigration judge's analysis based on the correct regulatory definition of acquiescence.
The petition for review is denied, meaning the Board of Immigration Appeals' decision to deny asylum and Convention Against Torture relief stands. The ruling reinforces the continued validity of the Matter of Lozada procedural hurdles for ineffective assistance claims in the Eleventh Circuit despite recent Supreme Court jurisprudence. It also clarifies that the 'complete failure' language used by the Board was descriptive of the petitioner's arguments rather than a heightened legal standard, ensuring that future claims must still prove government awareness and a breach of legal responsibility to intervene to establish acquiescence.