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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11272
Non-Argument Calendar
____________________
AREFIN SAMSUL,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A213-165-530
____________________
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2 Opinion of the Court 21-11272
Before WILSON, ROSENBAUM, and BRASHER, Circuit Judges.
PER CURIAM:
Arefin Samsul1 seeks review of the Board of Immigration
Appeals’s (“BIA”) denial of his motion to reopen his removal pro-
ceedings under 8 C.F.R. § 1003.2(c) based on ineffective assistance
of counsel. He contends that the BIA failed to give reasoned con-
sideration to his arguments and abused its discretion by denying
the motion to reopen. After review, we grant Samsul’s petition in
part and deny it in part.
I.
Samsul is a native and citizen of Bangladesh who entered the
United States on June 27, 2019. He was apprehended near the bor-
der in Texas and, the next day, sat for a credible-fear interview with
an asylum officer.
In the credible-fear interview, Samsul claimed that he feared
persecution by the ruling Awami League due to his active mem-
bership in the rival Bangladeshi National Party (“BNP”), and that
he had been physically harmed on five prior occasions. The worst
incident, he stated, occurred in June 2018 when Bangladeshi police
kidnapped him for several days, beat him repeatedly, made him
1 The petitioner is referred to as both Samsul Arefin and Arefin Samsul
throughout the record. We refer to him as Arefin Samsul for consistency with
the agency decisions below.
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21-11272 Opinion of the Court 3
drink his own urine, and threatened to kill him for belonging to the
BNP. The asylum officer determined that Samsul demonstrated a
credible fear of persecution or torture.
A. Initiation of Removal and Preliminary Matters
In August 2019, the Department of Homeland Security is-
sued Samsul a notice to appear, charging him as removable for en-
tering the country without authorization. Samsul retained coun-
sel, Zubaida Iqbal, who appeared with Samsul at a joint bond and
initial removal hearing in October 2019, conceded the grounds for
removal, and indicated that Samsul intended to apply for asylum.
The IJ reset the bond hearing for October 29, 2019, to permit the
government “to investigate a certain matter for purposes of bond.”
Samsul personally appeared for the October 29 hearing, stat-
ing that his counsel could not make it and had instead asked him to
request a new hearing date and “to submit the asylum papers.”
The IJ was displeased with counsel but reset the hearing so that
Samsul’s rights would “not be prejudiced in any way.” When the
hearing resumed in November 2019, counsel presented Samsul’s
form I-589 application for asylum, withholding of removal, and re-
lief under the United Nations Convention Against Torture
(“CAT”), and indicated that she needed additional time to obtain
and translate affidavits from witnesses in Bangladesh. The IJ set the
final removal hearing for January 22, 2020, and a deadline of Janu-
ary 8 for submitting any supporting evidentiary materials.
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4 Opinion of the Court 21-11272
The record contains two sets of evidentiary materials filed
by Iqbal on January 9, 2020, one day late. One set contained Bang-
ladesh country reports. The other set included copies of identifica-
tion materials and translated affidavits from Samsul’s family, col-
leagues, neighbors, and doctors. Iqbal filed an emergency motion
to accept late filing in connection with these documents. Also, be-
fore the hearing, Homeland Security filed a position statement in-
dicating that it viewed the BNP as a tier III undesignated terrorist
organization that rendered Samsul ineligible for asylum.
B. Merits Hearing
The merits hearing on Samsul’s asylum application went
forward on January 22, 2020, after Iqbal arrived nearly one hour
late. At the outset of the hearing, Iqbal indicated that she had re-
ceived additional documents and photos from Samsul’s family the
night before. The court declined to accept these documents. The
court also declined to admit the country reports and affidavits, stat-
ing that these documents were not filed on time and that the gov-
ernment would be prejudiced because Iqbal’s own USPS records
indicated that the government had not yet received the affidavits.
As a result of these decisions by the IJ, Samsul’s testimony was the
sole evidence supporting his asylum application.
Samsul testified as follows at the hearing. Samsul officially
joined the BNP’s student wing on December 16, 2016, which is a
national holiday in Bangladesh. Three days later, he was threat-
ened by members of the ruling Awami League’s student wing.
Then, on January 1, 2017, the anniversary of the date the BNP
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21-11272 Opinion of the Court 5
student wing was established, he was punched and kicked by
Awami League members for participating in a BNP event at a col-
lege. The college principal rescued him and took him to a doctor.
Samsul and his father went to the police, but the police did not ac-
cept his report of the incident and said he “better not come to the
police station” anymore.
Samsul was attacked a second time on August 15, 2017, by
Awami League members wielding bamboo sticks at a blood dona-
tion program that Samsul had organized. Again, Samsul tried to
report the incident to the police, but he was warned he would be
charged with crimes if he tried to file any other reports against rul-
ing party members.
A third attack occurred on December 16, 2017, during a
wreath laying ceremony. Samsul and other BNP members were
attacked by the Awami League, and the leader of the local BNP
student wing was killed. Samsul was beaten and then treated by a
village doctor in his home for several days. While he was at the
doctor’s home, Awami League members came by his house three
times looking for him.
Then, on January 1, 2018, Samsul was attacked for a fourth
time shortly after a BNP event. He and another BNP member were
pulled from a rickshaw and punched and kicked. Samsul ran away,
and then spent the night at the home of a member of parliament
and BNP publicity secretary. After this incident, his father warned
him that their family was “being ruined” due to his involvement in
politics and the threats and attacks from the Awami League. He
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6 Opinion of the Court 21-11272
went to his grandparents’ home for about a week but then came
back and resumed his political activities.
Finally, on June 3, 2018, the police acting in concert with the
Awami League picked Samsul up outside his home, handcuffed
him, and took him not to jail but to a house, where his arms and
legs were tied. After being “tortured . . . mentally” for ten days, the
police dropped him by a gas station with his arms and legs tied up.
A taxi driver who recognized Samsul found him and contacted
Samsul’s partner. Samsul was taken to a hospital but refused treat-
ment because of his involvement with BNP politics. He eventually
found a doctor who treated him at his home. After this incident,
he spent several months on the run, staying with relatives in other
areas of Bangladesh, but he was repeatedly followed and threat-
ened by the Awami League. Samsul left Bangladesh on December
20, 2018.
Notably, the late-filed affidavits on their face appear to cor-
roborate Samsul’s account. Several affiants testified about his ac-
tive involvement with the BNP. Others corroborated various de-
tails of Samsul’s account. For example, his father testified about
arranging medical treatment for Samsul after the attack on January
1, 2017; attempting to file a police report with him; being present
at his home on June 3, 2018, when the Awami League and police
came looking for his son and threatened to kill him; and soon after
watching his son being abducted and then returned ten days later.
In addition, the doctors whom Samsul identified in his testimony
swore that they treated him for injuries stemming from the attacks.
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21-11272 Opinion of the Court 7
During the hearing, Samsul appears to have suffered a panic
attack or other medical episode soon after recounting his col-
league’s murder on December 16, 2017. He reported that his
“heart [wa]s shaking” and, after a short break, that his arms and legs
felt “paralyzed.” Iqbal found that his hands were cold, and the IJ
observed that he appeared to be hyperventilating. The IJ suggested
calling an ambulance and resetting the hearing. Samsul responded
that, if he stayed, he “w[ould] be more sick.” The government
noted that Samsul appeared to be getting worse, that it believed
that the facts were not in dispute and the issue was more of a legal
nature, and that it “would have a strenuous objection into proceed-
ing” with Samsul’s testimony. The IJ then noted that Samsul ap-
peared to be breathing better, and Iqbal stated that Samsul should
decide whether they should continue. The IJ stated that Samsul
could leave and finish testifying later, and Iqbal indicated she could
return and finish the hearing at a later date. Samsul responded that,
when he remembered his abduction, he felt like he was “losing [his]
consciousness.” However, after being informed by the IJ that he
could continue with his testimony, submit the case for decision as
is, or postpone the hearing, he chose to keep testifying and con-
firmed that he felt well enough to do so.
C. IJ’s and BIA’s Decisions Denying Relief from Removal
In February 2010, after the hearing, the IJ issued a written
decision denying asylum. After reiterating that he had declined to
admit any documentary evidence, the IJ addressed Samsul’s credi-
bility. The IJ determined that Samsul lacked credibility due to “an
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8 Opinion of the Court 21-11272
omission and several inconsistencies,” which were as follows: (a)
Samsul’s asylum form, which he confirmed at the hearing was
complete and accurate, failed to note that he first traveled to India
upon leaving Bangladesh as reflected in his testimony; (b) he indi-
cated that he attended some college at the hearing but only high
school in the credible-fear interview; (c) he ”testified inconsist-
ently” about a nickname he sometimes used but did not disclose
on the asylum form or during the credible-fear interview; (d) he
failed to list his participation in the Rotary Club on the asylum ap-
plication; and (e) the IJ felt that some of his answers were nonre-
sponsive, citing in particular his failure to explain “the motivations
of his attackers.” The IJ did not accept Samsul’s explanations that
the minor omissions and inconsistencies were inadvertent errors
and that the education system in Bangladesh was constructed dif-
ferently than in the United States.
Having made an adverse credibility determination, the IJ
turned to “whether [Samsul] presented sufficient documentary ev-
idence to rehabilitate his incredible testimony or independently sat-
isfy his burden of proof.” The IJ found that Samsul “failed to timely
file any documentary evidence to support his claim, and no wit-
nesses appeared” on his behalf. Accordingly, the IJ denied relief
based solely on the adverse credibility finding and ordered Samsul
removed to Bangladesh.
Samsul, through new counsel, appealed to the BIA, which
affirmed the IJ’s decision in September 2020. The BIA upheld the
exclusion of Samsul’s documentary evidence and the adverse
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21-11272 Opinion of the Court 9
credibility determination for the reasons stated by the IJ. And
based on the lack of timely-filed documentary evidence, the BIA
concluded that Samsul’s “failure to credibly establish his claim is
dispositive” and that he had not met his burden for asylum, with-
holding of removal, or CAT relief.
D. Motion to Reopen Based on Ineffective Assistance
Following the adverse BIA decision, Samsul timely filed a
motion to reopen alleging ineffective assistance of immigration
counsel Iqbal and a supporting affidavit from Samsul. Samsul al-
leged that Iqbal prejudiced his case by providing ineffective assis-
tance in several ways, including by failing (1) to inform him of dead-
lines and the consequences of not complying; (2) to adequately pre-
pare him for the hearing; (3) to timely submit critical documentary
evidence; (4) to prepare a court-ordered proposed summary of the
facts; (5) to appear in court on time or at all; (6) to correct errors in
Samsul’s asylum form; and (7) to move for a continuance when the
government stated it had not received his documentary evidence
and when Samsul became ill during the hearing.
The BIA denied the motion to reopen in April 2021. The
BIA did not address whether counsel’s assistance was ineffective
because it found that, even assuming “his prior counsel’s assistance
was ineffective, the respondent has not established that he received
ineffective assistance of counsel because he has not shown that he
was prejudiced.” Rejecting points (6) and (7) above, the BIA noted
that Samsul confirmed the asylum form was complete and accurate
at the hearing and stated he wished to proceed with the hearing
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10 Opinion of the Court 21-11272
after being presented with the opportunity for a continuance. As
for points (1), (2), and (5), the BIA explained that these alleged de-
ficiencies did not impinge on the fundamental fairness of the pro-
ceeding. Finally, points (3) and (4), in the BIA’s view, were insuffi-
cient to show a reasonable probability of a different result. After
briefly restating the IJ’s grounds for the adverse credibility finding,
the BIA stated simply that “[t]here is no indication that the support-
ing evidence or summary of facts would overcome the credibility
concerns here or independently establish the respondent’s claim.”
This petition for review followed.
II.
“We review the BIA’s denial of a motion to reopen for abuse
of discretion, limiting our review to determining whether there has
been an exercise of administrative discretion and whether the mat-
ter of exercise has been arbitrary or capricious.” Sow v. U.S. Att’y
Gen., 949 F.3d 1312, 1317–18 (11th Cir. 2020) (quotation marks
omitted). To warrant reopening based on ineffective assistance,
the petitioner must demonstrate both that his counsel’s perfor-
mance was deficient and that the deficiency prejudiced his case. Id.
To show prejudice, the petitioner must demonstrate that “there is
a reasonable probability that but for the attorney’s error, the out-
come of the proceedings would have been different.” Id. at 1318
(quotation marks omitted).
We review de novo an argument “that the agency failed to
give reasoned consideration to an issue.” Jeune v. U.S. Att’y Gen.,
810 F.3d 792, 799 (11th Cir. 2016). We will grant a petition for
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21-11272 Opinion of the Court 11
review, vacate the agency’s decision, and remand for further pro-
ceedings “when a decision of an immigration judge or the BIA is so
lacking in reasoned consideration and explanation that meaningful
review is impossible.” Id. at 803.
While the BIA need not explicitly address all evidence and
claims presented by a petitioner, it must do enough to show that it
“consider[ed] the issues raised and announce[d] its decision in
terms sufficient to enable a reviewing court to perceive that it has
heard and thought and not merely reacted.” Id. (cleaned up). Un-
der our precedent, the BIA fails to give reasoned consideration
“when it misstates the contents of the record, fails to adequately
explain its rejection of logical conclusions, or provides justifications
for its decision which are unreasonable and which do not respond
to any arguments in the record.” Id.
A.
Here, the portion of the BIA’s decision denying reopening
based on ineffectiveness of counsel relating to obtaining and timely
submitting important documentary evidence does not reflect rea-
soned consideration sufficient to enable meaningful review. The
BIA summarily found “no indication that the supporting evidence
or summary of facts would overcome the credibility concerns here
or independently establish the respondent’s claim.” But the BIA
failed to explain its rejection of the logical conclusion that the doc-
umentary evidence, had counsel properly presented it for the IJ’s
consideration, created a reasonable probability of a different result.
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12 Opinion of the Court 21-11272
First, the supporting affidavits were clearly material to Sam-
sul’s credibility. On their face, the affidavits appear to corroborate
important aspects of his account, including his active membership
in the BNP, his receipt of medical treatment for injuries after the
attacks, his attempts to report the attacks to police, his abduction
by police forces affiliated with the Awami League on June 3, 2018,
and his hiding from authorities and receiving death threats follow-
ing the abduction. For example, Samsul’s father and brother re-
counted their personal experiences from June 3, when the police
came to their home and threatened Samsul’s life before abducting
him for ten days. Also, a relative claimed to have housed Samsul
after his abduction and that relative spoke of death threats against
Samsul by Awami League members.
If timely presented with the affidavits, which on their face
appear to corroborate many details in Samsul’s account, the IJ very
well could have concluded that the minor omissions and inconsist-
encies among his testimony, asylum application, and credible fear
interview, as well as his purportedly nonresponsive answers to a
question or two, did not undermine the credibility of his otherwise
detailed and supported account. See 8 U.S.C. § 1158(b)(1)(B)(iii).
Notably, it appears the government did not dispute the basic facts
of Samsul’s account but rather took the view that the “dispositive
issues” were of a “legal nature” apparently relating to BNP’s status.
On this record, we cannot meaningfully review the BIA’s unex-
plained rejection of the logical conclusion that, had the
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21-11272 Opinion of the Court 13
documentary evidence been properly submitted, there is a reason-
able probability of a different credibility finding. See Jeune, 810
F.3d at 799.
Second, even assuming the IJ’s adverse credibility finding
would have remained the same, the BIA failed to explain why the
documentary evidence itself would not have presented grounds for
asylum relief. “[A]n adverse credibility determination does not al-
leviate the [agency’s] duty to consider other evidence produced by
an asylum applicant.” Forgue v. U.S. Att’y Gen., 401 F.3d 1282,
1287 (11th Cir. 2005). And if an applicant presents other evidence
of persecution besides his own testimony, “it is not sufficient for
the [agency] to rely solely on an adverse credibility determination
in those instances.” Id.
Here, the documentary evidence tends to suggest that Sam-
sul suffered politically motivated death threats and violence by in-
dividuals affiliated with the ruling party, including being abducted
and held captive for ten days. Given these colorable grounds for
granting asylum relief, see, e.g., Mejia v. U.S. Att’y Gen., 498 F.3d
1253, 1257 (11th Cir. 2007), the BIA’s unexplained rejection of this
evidence is insufficient to permit meaningful review.
For these reasons, we conclude that the BIA failed to con-
sider the issues raised and to announce its decision in terms suffi-
cient to show “that it has heard and thought and not merely re-
acted.” Jeune, 810 F.3d at 799. Accordingly, we grant the petition
for review as to Samsul’s ineffective-assistance claims relating to
the failure to timely obtain and submit documentary evidence,
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14 Opinion of the Court 21-11272
including counsel’s alleged failure to meaningfully communicate
with him about important aspects of his case. We vacate the BIA’s
decision as to those claims, and we remand for further proceedings
consistent with this opinion.
B.
We deny the petition for review in part as to Samsul’s other
asserted grounds of ineffectiveness. The BIA adequately explained
its rejection of these grounds, and we cannot say that it abused its
discretion by denying relief. See Sow, 949 F.3d at 1317–18. The
BIA reasonably determined that Samsul’s counsel’s lateness for the
merits hearing did not prejudice him because he did not demon-
strate a reasonable probability that, if she had prepared him to tes-
tify immediately before his testimony, he would have been found
credible. Likewise, Samsul has not explained what counsel could
have asked on redirect or argued in closing that would have
changed the outcome of the proceeding, so there is not a reasona-
ble probability that the IJ would have reached a different conclu-
sion if counsel were on time.
For similar reasons, Samsul has not shown a reasonable
probability that his counsel prejudiced him by allowing him to con-
tinue testifying, as he requested, after he fell ill during the hearing.
His suggestion that his testimony would have been more credible
had the hearing been continued is purely speculative. As for the
omissions on his asylum application, the BIA reasonably deter-
mined that he was not prejudiced by counsel’s ineffectiveness in
light of Samsul’s confirmation to the IJ that he had personally
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21-11272 Opinion of the Court 15
reviewed the application “in Bengali, line by line, question by ques-
tion, answer by answer,” and did not wish to correct any omissions.
III.
In sum, we grant Samsul’s petition for review in part, relat-
ing to his claims of ineffective assistance based on counsel’s failure
to timely submit critical documentary evidence. We vacate the
BIA’s denial of those claims and remand for further proceedings
consistent with this opinion. We deny the petition as to Samsul’s
remaining claims.
PETITION GRANTED IN PART, DENIED IN PART,
AND REMANDED.