FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 8, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
MAGDALENA ESTEBAN-MARCOS;
PEDRO JOSE PATROCIN, a/k/a Pedro
Jose Petrosenio; ESTEBAN JOSE
PATROCIN, a/k/a Esteban Jose
Petrosenio,
Petitioners, No. 19-9561
(Petition for Review)
v.
WILLIAM P. BARR, United States
Attorney General,
Respondent.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BRISCOE, BACHARACH, and McHUGH, Circuit Judges.
_________________________________
Petitioners Magdelena Esteban-Marcos and her sons, Pedro Jose Patrocin and
Esteban Jose Patrocin, all of whom are Guatemalan nationals, seek review of the
Board of Immigration Appeals’ (BIA) decision denying their motion to reopen
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
removal proceedings. For the reasons explained below, we deny their petition for
review.
I
Ms. Esteban-Marcos entered the United States in 2003, followed by her sons in
2007. In April 2007, the government charged petitioners with entering this country
without inspection or parole. See 8 U.S.C. § 1182(a)(6)(A)(i). They conceded the
charges but applied for asylum, restriction on removal, and relief under the
Convention Against Torture (CAT). Through counsel, they appeared before an
immigration judge (IJ) and introduced evidence that they had lived difficult lives in
Guatemala. Petitioners are Mayans who speak Kanjobal, and Ms. Esteban-Marcos
was hated by others who apparently thought her father was a guerrilla fighter. Also,
one of her sons was born with a genetic condition that required multiple surgeries.
Based on this evidence, their attorney claimed they were persecuted in Guatemala
and had a well-founded fear of future persecution because they were members of a
particular social group: “individuals who are of Mayan descent, who speak the . . .
K[a]njobal language, who do not have access to adequate care for their children
based upon rare genetic defects, compounded with the fact that there are financial
difficulties and [no] access to adequate care in the community.” Admin. R. at 1067.
The IJ denied relief and ordered petitioners removed to Guatemala. The IJ
determined that Ms. Esteban-Marcos’s asylum claim was untimely and her sons were
not eligible for asylum because their particular social group was not cognizable, any
economic disadvantage they experienced was not sufficient to constitute past
2
persecution, there was no nexus between the inadequate medical care in Guatemala
and a statutory protected ground for relief, and they lacked a well-founded fear of
persecution.1 Based on these findings, the IJ concluded that petitioners also failed to
meet the more stringent standards for restriction on removal. Additionally, the IJ
denied CAT relief because there was no evidence petitioners would be tortured by or
with the acquiescence of the Guatemalan government.
Through the same counsel, petitioners appealed to the BIA, which affirmed the
IJ’s decision. Petitioners did not seek judicial review. Instead, still represented by
the same attorney, they requested and received successive annual administrative stays
of removal from 2014 until the government denied a stay on February 12, 2019. At
that point, petitioners retained new counsel and moved the BIA to reopen their
removal proceedings. The motion to reopen, which petitioners filed on March 5,
2019, claimed previous counsel rendered ineffective assistance and there were
materially changed conditions in Guatemala warranting reopening their case.2
The BIA denied the motion to reopen as untimely, ruling that the deadline for
filing the motion was September 12, 2013. The BIA recognized the deadline could
be equitably tolled based on ineffective assistance of counsel, but it concluded that
petitioners failed to show due diligence in pursuing their case. The BIA reasoned
1
Although the sons were riders on Ms. Esteban-Marcos’s applications, the IJ
separately evaluated their asylum claims on the merits. See Admin. R. at 860.
2
Petitioners also sought sua sponte reopening, but the BIA denied their
request. This ruling is not before us.
3
that they provided no evidence or explanation indicating when they learned of former
counsel’s alleged ineffectiveness, what efforts they made to discover it, or what they
did to reopen their case upon learning of it. The BIA also observed that, although the
deadline was inapplicable to a motion to reopen based on changed country
conditions, petitioners’ evidence did not establish materially worse conditions in
Guatemala since the IJ’s removal hearing—it reflected mistreatment and violence
against indigenous women that had existed in Guatemala for decades. Accordingly,
the BIA denied the motion to reopen. Petitioners subsequently filed this petition for
review.
II
“We review the BIA’s decision on a motion to reopen only for an abuse of
discretion. The BIA abuses its discretion when its decision provides no rational
explanation, inexplicably departs from established policies, is devoid of any
reasoning, or contains only summary or conclusory statements.” Maatougui v.
Holder, 738 F.3d 1230, 1239 (10th Cir. 2013) (brackets and internal quotation marks
omitted). “[M]otions to reopen immigration cases are plainly disfavored, and
[non-citizens] bear[] a heavy burden to show the BIA abused its discretion.” Id.
(brackets and internal quotation marks omitted). To warrant reopening within the
BIA’s discretion, a non-citizen must present new evidence “demonstrat[ing] that if
proceedings before the IJ were reopened, with all the attendant delays, the new
evidence offered would likely change the result in the case.” Id. at 1240 (brackets
and internal quotation marks omitted).
4
A motion to reopen must be filed within 90 days of the date of entry of a final
order of removal. 8 U.S.C. § 1229a(c)(7)(C)(i). The order of removal here became
final on June 14, 2013, so the 90-day period for filing the motion expired on
September 12, 2013. Petitioners filed their motion to reopen on March 5, 2019—
some five and a half years late. Thus, the motion was untimely. Nonetheless,
petitioners contend they are entitled to equitable tolling because their former counsel
rendered ineffective assistance. They also contend the deadline did not apply
because they established materially changed conditions in Guatemala. We consider
these contentions in turn.
A. Equitable Tolling Due to Ineffective Assistance
Ineffective assistance of counsel may equitably toll the period for filing a
motion to reopen if a non-citizen “demonstrate[s] not only that [her] constitutional
right to due process has been violated by the conduct of counsel, but that [she] has
exercised due diligence in pursuing the case during the period [she] seeks to toll.”
Mahamat v. Gonzales, 430 F.3d 1281, 1283 (10th Cir. 2005) (internal quotation
marks omitted). “To determine whether tolling is appropriate, a simple cursory
comparison of the date of filing and the regulatory time line for filing motions is not
enough. Specifically, the BIA must review [the non-citizen’s] due diligence along
with [her] attempts to comply with the BIA’s requirements detailed in Matter of
5
Lozada[, 19 I. & N. Dec. 637 (BIA 1988)].” Galvez Pineda v. Gonzales, 427 F.3d
833, 838 (10th Cir. 2005) (brackets and internal quotation marks omitted).3
Here, the BIA assumed without deciding that former counsel rendered
ineffective assistance that prejudiced petitioners’ case. But the BIA determined that
petitioners failed to show due diligence because they failed to explain when they
learned of former counsel’s alleged ineffectiveness or what they did to discover it
between the time of the IJ’s hearing in 2012 and the time they filed their motion to
reopen in 2019. Petitioners assert it is evident from their motion to reopen that they
discovered the alleged ineffective assistance after the government denied their stay
request on February 12, 2019, at which point they promptly hired new counsel, who
told them less than two weeks later that former counsel was ineffective. Their new
counsel then complied with the procedural requirements of Lozada and filed the
motion to reopen on March 5, 2019. Petitioners insist they did not know former
counsel was ineffective until their current counsel told them.
But equitable tolling is only “appropriate up to the point at which [petitioners]
knew or should have known of prior counsel’s ineffectiveness.” Galvez Pineda,
427 F.3d at 838. Ms. Esteban-Marcos’s affidavit, which she attached to the motion
to reopen, suggests she knew former counsel was ineffective at the time of the IJ
3
In Matter of Lozada, the BIA set forth the procedural requirements for
bringing a claim of ineffective assistance of counsel: 1) an affidavit detailing the
agreement with counsel, 2) notice to counsel describing the allegations and providing
an opportunity to respond, and 3) a complaint filed with the proper disciplinary
authority or an explanation why no complaint was filed. 19 I. & N. Dec. 637, 639
(BIA 1988).
6
hearing in 2012, and perhaps earlier. She states that former counsel “took [her]
asylum case in the direction he wanted to[] and never consulted or helped [her]
understand what [she] needed to understand on [her] case.” Admin. R. at 121. It
further states that she “was never brave enough to fire him because [she] had already
invested too much money on him and [she] felt that if [she] changed attorneys it
could jeopardize [her] case.” Id. at 122. Moreover, in petitioners’ motion to reopen,
they argued that former counsel was ineffective in seeking relief based on their
membership in a particular social group rather than their race. They also faulted him
for focusing on the son’s medical condition, his limited treatment options in
Guatemala, and the economic hardship they faced, rather than ordering a
psychological exam for Ms. Esteban-Marcos and eliciting testimony from her about a
sexual assault she suffered and the kidnapping of her daughter. But all of these facts
were known to petitioners at the time of the IJ’s hearing in 2012, and yet, despite
knowing that former counsel argued as he did rather than as they wanted him to, they
made no effort to pursue an ineffective-assistance claim until 2019. We cannot
countenance such dilatory conduct when the basis for the ineffective-assistance claim
would have been apparent to them at the time of the hearing before the IJ. See
Maatougui, 738 F.3d at 1244 (upholding finding that petitioner failed to exercise due
diligence where she was aware of the alleged errors that made up her ineffective-
assistance claim and could have taken steps to assert her claim but she waited to raise
it in an untimely motion to reopen).
7
Indeed, petitioners, knowing that former counsel unsuccessfully pursued
theories with which they disagreed, allowed him to advance those same theories on
appeal to the BIA without raising any concerns. They then permitted former counsel
to continue requesting successive stays of removal until the government denied their
request in 2019. It was not until that point—more than five years after the filing
deadline and some seven years after the IJ’s hearing—that they finally filed their
motion to reopen raising concerns that they had at the time of the IJ’s hearing in
2012. “Removable aliens are not permitted to delay matters by pursuing multiple
avenues of relief seriatim when no reason suggests why they could not be pursued
simultaneously.” Galvez Pineda, 427 F.3d at 839. If nothing else, it was petitioners’
burden to explain why they did not consult with another attorney sooner. But as the
BIA observed, they provided no such explanation.
Petitioners insist they need not investigate whether former counsel was
ineffective. But they do not dispute that tolling is only appropriate until they knew or
should have known of the alleged ineffectiveness. The record indicates they should
have known at the time of the IJ’s hearing in 2012 that former counsel failed to raise
the arguments they wanted him to raise.
Petitioners also contend the BIA erred by simply comparing the deadline for
filing the motion to reopen with the date they filed it and concluding that it was
untimely. They suggest we should remand, as we did in Riley v. INS, 310 F.3d 1253
(10th Cir. 2002), because the BIA failed to adequately analyze their diligence. In
Riley, we remanded because the entirety of the BIA’s analysis was to note when the
8
non-citizen learned of the BIA’s decision and when he filed his motion to reopen
years later, without analyzing the due diligence issue. See id. at 1257-58. Here, by
contrast, the BIA observed that petitioners did not provide any information reflecting
what they did to discover former counsel’s alleged ineffectiveness between the time
of their hearing and the time they filed the motion to reopen. The BIA also
recognized that they failed to specify when they discovered the deficient performance
or what they did to reopen their case upon learning it was deficient. Thus, unlike in
Riley, the BIA here recognized the possibility of equitable tolling if petitioners had
demonstrated that they acted with due diligence, and it explained why it concluded
they failed to do so. There is no need for additional findings on this issue
To the extent petitioners assert they were denied due process by the BIA’s
“conclusory statements” denying their motion to reopen, Pet’r Br. at 33, their
argument “is just a quarrel about the level of detail required in the BIA’s analysis,
not a colorable due process claim,” Alzainati v. Holder, 568 F.3d 844, 851 (10th Cir.
2009). “The BIA is not required to write an exegesis on every contention. What is
required is that it consider the issues raised, and announce its decision in terms
sufficient to enable a reviewing court to perceive that it has heard and thought and
not merely reacted.” Maatougui, 738 F.3d at 1242-43 (brackets and internal
quotation marks omitted). The BIA’s analysis here is adequate to permit our review.
Moreover, the record does not support petitioners’ contention that the BIA
failed to consider evidence they submitted with their motion to reopen. The BIA
considered the evidence but concluded that it did not explain what efforts they made
9
to pursue their ineffective-assistance claim. The evidence does reflect that present
counsel acted to comply with Lozada after the government denied a stay in February
2019, but it does not reflect any effort to pursue the claim before then, despite
petitioners’ knowledge of the factual basis for the ineffective-assistance claim at the
time of the IJ hearing in 2012. As noted above, Ms. Esteban-Marcos’s affidavit
states that she told former counsel that she and her family were persecuted because of
their race and he failed to seek asylum on that basis. See Admin. R. at 121-22. It
also states that she did not fire him because she did not want to “jeopardize [her]
case.” Id. at 122. Given this evidence, the BIA did not abuse its discretion in
denying the motion to reopen for lack of due diligence.
B. Changed Conditions
We next consider petitioners’ contention that changed country conditions
exempt them from the 90-day deadline for filing a motion to reopen. Under 8 U.S.C.
§ 1229a(c)(7)(C)(ii), “[t]here is no time limit on the filing of a motion to reopen if
. . . [it] is based on changed country conditions arising in . . . the country to which
removal has been ordered, if such evidence is material and was not available and
would not have been discovered or presented at the previous proceeding.” “[A]
significant increase in the level of persecution constitutes a material change in
country conditions for purposes of 8 U.S.C. § 1229a(c)(7)(C),” and “the BIA abuses
its discretion when it fails to assess and consider a petitioner’s evidence that the
persecution of others in his protected category has substantially worsened since the
initial application.” Qiu v. Sessions, 870 F.3d 1200, 1204-05 (10th Cir. 2017).
10
Petitioners contend the BIA ignored evidence of significantly worsened
conditions in Guatemala for indigenous women since their initial application for
relief, and particularly since 2018. Petitioners reference nearly 700 pages of articles,
which they contend “report[] a significant increase in persecution of indigenous
persons of Mayan descent.” Pet’r Br. at 27. But the only specific evidence they cite
is part of a 2015 report stating that the mishandling of social conflicts “has worsened
the situation faced by human rights defenders, community leaders and indigenous
populations.” Admin. R. at 269. They also cite part of another report published in
2015 noting that in recent years, the weakened national police caused a worsening
security situation. This evidence does not reflect a significant increase in the
persecution of Mayans or Mayan women in Guatemala since petitioners’ initial
application for relief or since the IJ hearing in 2012. To be sure, the evidence
documents a long history of violence toward Mayan women, but the BIA did not
ignore this evidence. Rather, the BIA analyzed country reports that generally
described the violence and mistreatment of indigenous Guatemalans. The BIA
observed that the evidence reflected ongoing “mistreatment and violence in
[Guatemala] for decades,” which “was a serious problem, even at the time of [the
2012] hearing.” Id. at 4 (internal quotation marks omitted). And because of the
continuing nature of this violence, the BIA concluded there was insufficient evidence
of a material change in country conditions. The record supports this conclusion, and
thus, the BIA did not abuse its discretion in denying the motion to reopen based on
changed country conditions.
11
III
Accordingly, the petition for review is denied.
Entered for the Court
Carolyn B. McHugh
Circuit Judge
12