Atud v. Garland

• Court: Court of Appeals for the Tenth Circuit
• Decided: July 24, 2024
• Docket: 23-9578
• Status: Unpublished

Opinion

Appellate Case: 23-9578 Document: 010111084212 Date Filed: 07/24/2024 Page: 1 FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS July 24, 2024 FOR THE TENTH CIRCUIT _________________________________ Christopher M. Wolpert Clerk of Court MATHURIN A. ATUD,

Petitioner,

v. No. 23-9578 (Petition for Review) MERRICK B. GARLAND, United States Attorney General,

Respondent. _________________________________

ORDER AND JUDGMENT* _________________________________

Before BACHARACH, EID, and FEDERICO, Circuit Judges. _________________________________

Mathurin A. Atud petitions for review of a decision of the Board of

Immigration Appeals (BIA) denying his motion to reopen removal

proceedings based on alleged ineffective assistance of counsel. We conclude

the BIA did not adequately explain its denial of that motion. We therefore

* 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 23-9578 Document: 010111084212 Date Filed: 07/24/2024 Page: 2

grant the petition, vacate the BIA’s denial, and remand for further

proceedings.

I. BACKGROUND & PROCEDURAL HISTORY

A. Atud’s Arrival in the United States

Atud is a native and citizen of Cameroon. In June 2018, he presented

himself at the San Ysidro, California, port of entry and requested asylum

based on his political opinion. Specifically, he claimed he had participated

in a pro-Anglophone demonstration in Cameroon and Cameroonian

authorities have since been arresting the participants.

B. Immigration Court Proceedings

The government soon brought removal proceedings against Atud,

charging him with entering the United States without a valid entry

document. Atud conceded removability on that basis and then formally

applied for asylum, withholding of removal, and protection under the

Convention Against Torture (CAT). He also retained an attorney to assist

him.

Ahead of his asylum hearing before an Immigration Judge (IJ), Atud

submitted eight declarations from friends and family in Cameroon. These

declarations portrayed Atud as a major force in organizing pro-Anglophone

protests in his region of Cameroon, such that he had become recognizable

to Cameroonian authorities. The declarations also gave dramatic details

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about an October 1, 2017, protest in which Atud participated and possibly

more than 100 people were killed. At the asylum hearing, however, Atud

testified the October 1, 2017, protest was the only protest he had ever

joined. Moreover, he testified that the total size of the protest was about

100 people, whom the police dispersed by arresting some and beating

others, including him. Atud also gave arguably inconsistent answers about

how he managed to get away. As to the differences between his own

testimony and the story told in his supporting declarations, he claimed the

declarants had been mistaken or there had been a misunderstanding.

Based on the inconsistencies in Atud’s testimony and the

inconsistencies between his testimony and his supporting declarations, the

IJ concluded Atud was not credible. The IJ further found that Atud did not

otherwise qualify for asylum, withholding of removal, or CAT protection.

The IJ accordingly denied relief and ordered that Atud be removed to

Cameroon.

C. BIA Proceedings

Atud appealed to the BIA and obtained a new attorney. Through his

new counsel, Atud conceded that the IJ’s decision was “legally correct based

on the information provided to him,” R. at 39, but argued that his

proceeding must be reopened and remanded to the IJ based on his previous

attorney’s alleged ineffective assistance and based on new evidence.

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Concerning ineffective assistance, Atud argued:

 He is illiterate, but his former attorney apparently never realized this and never realized Atud could not have read the supporting declarations submitted on his behalf.

 A competent attorney would have reviewed those supporting declarations with Atud ahead of time, to verify them.

 His main language is Cameroonian pidgin English, yet his former attorney allowed the asylum hearing to take place entirely in American English, which may have led to misunderstandings.

 His attorney did not recognize that he (Atud) has an intellectual disability.

He argued that if his attorney had understood and handled these matters

appropriately, it could have affected the IJ’s credibility determination.

Concerning new evidence, Atud submitted the results of tests a

psychologist had recently performed showing that Atud possesses very poor

nonverbal intelligence. Atud believed this supports a theory that, to mask

his disability, he said and did things “to make himself appear more

knowledgeable and competent than he actually was,” which is a “normal

coping strateg[y] of the intellectually disabled—attempting to pass as more

intellectually competent than they actually are.” R. at 35. Atud presented

this evidence as both relevant to his claims and also relevant to his former

attorney’s ineffectiveness.

In a single-member summary order, the BIA denied Atud’s motion to

reopen. The BIA first addressed Atud’s arguments about his intellectual 4 Appellate Case: 23-9578 Document: 010111084212 Date Filed: 07/24/2024 Page: 5

abilities, and in that vein, the BIA asked whether anything in the record

suggested the IJ should have inquired into his mental competency. In its

view, the answer was no: “The transcript demonstrates that the respondent

understood the proceedings, was engaged at every hearing, and answered

questions appropriately. There is no indication that the respondent could

not meaningfully participate in his proceedings. We are not persuaded to

remand the record on mental competency grounds.” R. at 5 (citation

omitted).

As for ineffective assistance, the BIA denied relief with the following

explanation:

Our review of the record . . . does not reflect that the respondent was ill prepared for the merits hearing. New counsel’s assertion that the respondent has a limited understanding of English does not explain the discrepancies between the respondent’s testimony and his supporting affidavits from his family members regarding the details of his claim. Also, counsel’s arguments on appeal are not evidence. The respondent has not demonstrated that [the former attorney] was ineffective in his representation of the respondent or that ineffective assistance of counsel contributed to the Immigration Judge’s adverse credibility finding.

R. at 5 (footnote and citation omitted).

This petition for review timely followed. Atud “is only appealing the

denial of the Motion to Remand [i.e., the motion to reopen].” Opening Br.

at 5.

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II. LEGAL STANDARD

“Because [removal] proceedings are civil in nature, a claim of

ineffective assistance of counsel in a [removal] proceeding may be based

only on the Fifth Amendment guarantee of due process.” Akinwunmi v. INS,

194 F.3d 1340, 1341 n.2 (10th Cir. 1999). “As a result, an alien must show

that his counsel’s ineffective assistance so prejudiced him that the

proceeding was fundamentally unfair.” Id. “The ineffectiveness prong

requires egregious circumstances, and the prejudice prong requires a

reasonable likelihood that the outcome would have been different but for

counsel’s deficient performance.” Mena-Flores v. Holder, 776 F.3d 1152,

1169 (10th Cir. 2015) (footnote and internal quotation marks omitted).

We review the BIA’s decision on this matter for abuse of discretion.

Id. “The agency abused its discretion if it failed to give a rational

explanation, inexplicably deviated from past policies, failed to supply any

reasoning, or rested on summary or conclusory statements.” Id.

III. ANALYSIS

To repeat, ineffective assistance in this context requires (i) egregious

circumstances and (ii) prejudice, meaning a reasonable likelihood of a

different outcome.

The BIA did not explicitly invoke the egregious-circumstances

standard. It did say, however, that “[t]he respondent has not demonstrated

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that [the former attorney] was ineffective in his representation of the

respondent.” R. at 5. If the former attorney was not ineffective, then

naturally the circumstances were not egregious. But the BIA’s analysis is

no more than a “conclusory statement[]” that “fail[s] to supply any

reasoning.” Mena-Flores, 776 F.3d at 1169.

This alone does not require remand because ineffective assistance

requires both egregious circumstances and prejudice. If the BIA did not

abuse its discretion as to prejudice, this court could affirm on that basis

alone. See Zzyym v. Pompeo, 958 F.3d 1014, 1033–34 (10th Cir. 2020) (“[W]e

can uphold administrative action when an agency gives two independent

reasons and only one of them is valid.”); Karki v. Holder, 715 F.3d 792, 804

(10th Cir. 2013) (concluding that one of the BIA’s findings was

unsupportable on the record and then examining the BIA’s alternative

finding on a different element).

Like egregious circumstances, the BIA did not explicitly invoke the

prejudice standard. However, the BIA found that Atud had “not

demonstrated . . . that ineffective assistance of counsel contributed to the

Immigration Judge’s adverse credibility finding,” R. at 5, which appears to

be a finding of no prejudice. As far as potential support for that finding, the

BIA seems to have relied on the following:

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 “Our review of the record . . . does not reflect that the respondent was ill prepared for the merits hearing.”

 “New counsel’s assertion that the respondent has a limited understanding of English does not explain the discrepancies between the respondent’s testimony and his supporting affidavits from his family members regarding the details of his claim. Also, counsel’s arguments on appeal are not evidence.”

Id. (footnote omitted).1

We will begin with the statement that “counsel’s arguments on appeal

are not evidence.” We believe this refers to the beginning of the preceding

sentence, i.e., to “[n]ew counsel’s assertion that the respondent has a limited

understanding of English.” Here, however, Atud’s motion to reopen included

a psychologist’s report claiming to demonstrate his limited nonverbal

intelligence. It also included an affidavit from his sister describing her

observations of his language difficulties, including her belief (formed while

observing him at an immigration court hearing) “that he was confused about

the meanings of some of the English words.” R. at 75. In short, the

1 Atud argues the BIA also relied (erroneously, he says) on its conclusion that there was no reason to question his mental competency. Atud claims the BIA raised the question of mental competency sua sponte, using it as some sort of surrogate for analyzing prejudice or the effectiveness of his former attorney. We believe Atud misinterprets the BIA’s decision. Atud asserted two reasons for reopening: (1) ineffective assistance and (2) new evidence supporting his claim of an intellectual disability. As to the latter, he specifically claimed that he attempts to make himself appear more mentally competent than he actually is. It seems clear the BIA was responding to this argument, not confusing the competency standard with the ineffective-assistance standard. 8 Appellate Case: 23-9578 Document: 010111084212 Date Filed: 07/24/2024 Page: 9

“assertion that [Atud] has a limited understanding of English,” R. at 5, was

not solely argument of counsel.

It is difficult to tell whether the BIA’s conclusion to the contrary was

intended as a throwaway remark to be given no real weight in its analysis.

Normally “remand is appropriate” when “we can’t determine whether the

agency necessarily relied on deficient reasons,” Zzyym, 958 F.3d at 1033.

However, we will set this aside momentarily as we consider the rest of the

BIA’s proffered reasons, specifically, “Our review of the record . . . does not

reflect that the respondent was ill prepared for the merits hearing,” and

“[Atud’s] limited understanding of English does not explain the

discrepancies between [his] testimony and his supporting affidavits,” R. at

5 (footnote omitted).

Atud argues that these two statements are essentially contradictory.

In his view, the very fact of the discrepancies between his testimony and

his supporting affidavits shows his attorney had not properly prepared him

for the merits hearing. “[O]n the day of trial the IJ knew more about the

contents of those witness statements [than] Mr. Atud’s [former] counsel.”

Opening Br. at 27. Atud argues that his former attorney entirely failed to

understand ahead of time Atud’s own story and to cross-check it against the

story told in the supporting declarations. In his view, effective counsel

would have, among other things, “interviewed him extensively in

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preparation for trial, and . . . inquired into each and every inconsistency in

the record as it existed at that point,” “explicitly noted for the IJ the

problematic evidentiary value of the non-witness affidavits, withdrawn

them if possible, and verified on the record during the direct exam that the

Petitioner had neither told the witnesses what to write . . . nor . . . reviewed

their statements for accuracy,” and “interviewed [him] and worked with him

(and possibly other accessible witnesses) to verify and order his memories

of his experiences.” Reply Br. at 8.

From the government’s perspective, however, Atud’s “entire argument

depends on accepting the assumption he has a credible claim his prior

attorney bungled, as opposed to accepting the agency’s conclusion that [he]

simply does not have a credible claim.” Response Br. at 26. The government

views Atud’s invocation of the ineffective-assistance standard as a cynical

ruse to obtain a “blank-slate opportunity to rework a failed claim.” Id. at 27.

We appreciate the government’s concern. We do not endorse any

ineffective-assistance claim that, at bottom, amounts to an assertion that a

better attorney could have helped the petitioner to construct a more

believable story. However, the question before this court is not whether

Atud is misusing the ineffective-assistance standard but whether the BIA

adequately explained why he did not satisfy that standard.

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When the BIA said that “[Atud’s] limited understanding of English

does not explain the discrepancies between [his] testimony and his

supporting affidavits,” R. at 5 (footnote omitted), it may have had in mind

the same thing the government has in mind, namely, that Atud’s (apparent)

dishonesty has been exposed and he is simply grasping for a second chance.

Or the BIA may have concluded that the supporting affidavits say what

they say, and their import cannot be avoided, regardless of whether Atud

could have read them ahead of time and prepared to explain the

discrepancies. But we do not offer these possibilities as examples of

reasoning that would necessarily pass our abuse-of-discretion review. We

offer them merely to demonstrate that we cannot be sure what the BIA had

in mind in its analysis because it did not explicitly say in the order.

“We cannot perform a meaningful review where the [BIA] does not

sufficiently articulate its reasoning.” Mickeviciute v. INS, 327 F.3d 1159,

1162 (10th Cir. 2003). Also, “[w]e are not at liberty to search the law and

the record for reasoning to support the BIA’s decision because a court may

not uphold an agency action on grounds not relied on by the agency.” Id. at

1162–63 (internal quotation marks omitted). Our uncertainty about what

the BIA really meant when discussing the significance of the

inconsistencies, combined with the BIA’s error in attributing a factual

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assertion to argument of counsel only, convinces us that remand is the best

course.

IV. CONCLUSION

We grant the petition for review, vacate the BIA’s denial of Atud’s

motion to reopen, and remand for further proceedings consistent with this

order and judgment.

Entered for the Court

Richard E.N. Federico Circuit Judge