United States Court of Appeals For the First Circuit
No. 24-1296
VENTURA CHANCHAVAC GARCIA; ROSA CLEOTILDE TEMA LOPEZ,
Petitioners,
v.
PAMELA J. BONDI, Attorney General,*
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS
Before
Barron, Chief Judge, and Rikelman, Circuit Judge.**
Val C. Ribeiro, with whom Lider, Fogarty & Ribeiro, P.C. was on brief, for petitioners.
Michael C. Heyse, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, with whom Brian M. Boynton, Principal Deputy Assistant Attorney General, Civil Division, and Jonathan A. Robbins, Assistant Director, Office of Immigration Litigation, were on brief, for respondent.
* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Pamela J. Bondi is automatically substituted for former Attorney General Merrick B. Garland as Respondent. ** Judge Selya heard oral argument in this case and participated in the semble, but he did not participate in the issuance of this opinion. The remaining two panelists issued this opinion pursuant to 28 U.S.C. § 46(d). April 24, 2025 RIKELMAN, Circuit Judge. Ventura Chanchavac Garcia and
Rosa Cleotilde Tema Lopez (Petitioners) asked the Board of
Immigration Appeals (BIA) to reopen their removal proceedings,
arguing that they received ineffective assistance of counsel in
earlier stages of their case. The BIA denied the motion to reopen,
and Petitioners seek this court's review. They argue that the BIA
erred in concluding that they were not prejudiced by the
performance of their prior attorney and in holding that they had
not demonstrated prima facie entitlement to the relief they
sought -- cancellation of removal. Because we conclude that the
BIA provided insufficient explanation for its ruling, such that we
are unable to review the legal bases for its conclusions, we grant
the petition and remand to the BIA for further proceedings.
I. BACKGROUND
Petitioners are married citizens of Guatemala who
entered the United States without inspection and have resided in
Massachusetts for over twenty years. They have four children,
ages nine, thirteen, sixteen, and twenty, all of whom are U.S.
citizens.
In 2015, the U.S. Department of Homeland Security issued
Notices to Appear, charging Petitioners with removability.
Petitioners then applied for cancellation of removal under 8 U.S.C.
§ 1229b. This statute permits the Attorney General to cancel
removal of a noncitizen who meets certain requirements. See 8
- 3 - U.S.C. § 1229b(b)(1). Those requirements include that the
individual has been physically present in the United States for
ten years, has demonstrated good moral character during that time,
and has not been convicted of specified offenses. See id.
§ 1229b(b)(1)(A)-(C). Most importantly for our purposes, to be
eligible for relief under § 1229b, the noncitizen must
"establish[] that removal would result in exceptional and
extremely unusual hardship to the[ir] spouse, parent, or child,
who is a citizen of the United States or an alien lawfully admitted
for permanent residence." Id. § 1229b(b)(1)(D). Represented by
attorney Lidia Sanchez, Petitioners argued that they met the
exceptional and extremely unusual hardship requirement. They
submitted evidence that their son, L.C., required medical and
educational support and had been diagnosed with oppositional
defiant disorder, anxiety, and attention deficit hyperactivity
disorder (ADHD).
The Immigration Judge (IJ) denied Petitioners'
application for cancellation of removal in an oral decision,
concluding that they were not statutorily eligible for such relief.
He found that Petitioners had been physically present in the United
States for at least ten years, were persons of good moral
character, and had not been convicted of any offenses that would
bar cancellation of removal. As to exceptional and extremely
unusual hardship, however, the IJ held that Petitioners had not
- 4 - carried their burden. Although he found Petitioners "credible,"
the IJ explained that he required them to "corroborat[e] their
otherwise credible testimony." He observed that "[t]he only
factors separating this case from other cases [were] the arguments
raised by counsel and the evidence in the record relating to
[L.C.]." But he concluded that these arguments could not rescue
Petitioners' application because "there [was] fairly limited
evidence" about L.C. He singled out Petitioners' failure to submit
evidence "as to how [L.C.]'s situation would affect him were he to
return to Guatemala with his parents" or evidence "corroborat[ing]
[Petitioners'] claims that their children would be unable to attend
school in Guatemala."
Petitioners appealed to the BIA, still represented by
Sanchez. They argued that the IJ had erred in denying their
application, see 8 C.F.R. § 1003.1(d)(1), (3), and they also
submitted previously unavailable evidence in support of their
claim, including new evidence about another child's learning
disabilities. They did not submit any additional corroborating
evidence about L.C., however, nor did they submit any additional
evidence about education in Guatemala.
The BIA dismissed their appeal in early 2020. It
"adopt[ed] and affirm[ed] the decision" of the IJ, noting that
exceptional and extremely unusual hardship is a high bar and that
Petitioners had not provided "sufficient corroborating
- 5 - documentation regarding how their removal would adversely affect
their children."1 The BIA also held that the documentation
relating to their other child with learning disabilities "would
not likely change the result in this case."
Relying on their same attorney, Petitioners filed a
statutory motion to reopen under 8 U.S.C. § 1229a(c)(7) less than
three weeks later. They argued that the COVID-19 pandemic would
"significantly affect [their] economic situation" and asked the
BIA to "reassess its decision based on the impact of the pandemic
on the hardship to be experienced by the [U.S.] Citizen children
of [Petitioners]." Four months later, the BIA denied the motion
to reopen, finding that "it is speculative that any of the
respondents' children will become seriously ill in Guatemala and
that the children will suffer undue consequences due to the virus."
Nearly two years passed before Petitioners filed a
second statutory motion to reopen in September 2022, this time
represented by new counsel. Petitioners acknowledged that they
would ordinarily be limited to a single statutory motion to reopen
that must be filed within ninety days of the BIA's final decision.
But they argued that the number and time restrictions should be
1The BIA's decision stated that "[w]e also agree with the [IJ]'s determination that the respondents did provide sufficient corroborating documentation," but we assume, given the context, that the BIA inadvertently omitted the word "not" from this sentence.
- 6 - equitably tolled. Petitioners contended that in their initial
proceeding before the IJ, their appeal to the BIA, and their first
motion to reopen (the "Removal Proceedings"), their prior attorney
had rendered ineffective assistance of counsel. Accompanying
their motion, Petitioners submitted several sources detailing
country conditions in Guatemala. These sources included two U.S.
Department of State reports with information about education for
people with disabilities in the country and an article explaining
that, because special education services are limited, most
individuals with disabilities in Guatemala receive no schooling.
They also submitted a declaration explaining their allegations of
ineffective assistance of counsel against Sanchez, documentation
that the State Bar of Rhode Island received their complaint against
her, and Sanchez's response to their complaint. In her response,
Sanchez explained that she did not submit country conditions
evidence to the agency because she "do[es] not find that it [is]
necessary in cancellation cases" and "[j]udges are very aware of
the country conditions for Guatemala." Finally, Petitioners
attached new evidence stating that several of their children had
medical problems and that a third child had learning challenges.
The BIA denied Petitioners' second motion to reopen in
February 2024. It held that the time and number constraints
governing statutory motions to reopen could not be equitably tolled
based on Petitioners' alleged ineffective assistance of counsel
- 7 - claim because Petitioners had not shown that their counsel's
assistance "was so deficient that they suffered prejudice." And
it explained that "the record does not establish [a] prima facie
showing of exceptional and extremely unusual hardship in the
aggregate."
Petitioners filed this timely petition for review of the
BIA's decision.
II. STANDARD OF REVIEW
We review the BIA's denial of a statutory motion to
reopen for abuse of discretion. See Aponte v. Holder, 683 F.3d 6,
10 (1st Cir. 2012). Under that umbrella standard, we evaluate the
BIA's legal conclusions de novo. See id. Further, "we typically
focus on the final decision of the BIA," but "to the extent that
the BIA deferred to or adopted the IJ's reasoning, we review those
portions of the IJ's decision as well." Ferreira v. Garland, 97
F.4th 36, 45–46 (1st Cir. 2024) (cleaned up). And "[w]hen
discussing the BIA and IJ's decisions as a unit, we refer to them
jointly as 'the agency.'" Id. at 46.
III. DISCUSSION
A. Equitable Tolling
Ordinarily, a noncitizen may file only one statutory
motion to reopen their removal proceedings, and this motion must
be filed within ninety days of the date of entry of a final
administrative order of removal. 8 U.S.C. § 1229a(c)(7)(A),
- 8 - (c)(7)(C)(i). But Petitioners argue that (1) these requirements
may be equitably tolled, and (2) ineffective assistance of counsel
warrants equitable tolling.
We assume, without deciding, that the time and number
constraints on statutory motions to reopen, set forth in 8 U.S.C.
§ 1229a, may be equitably tolled in certain circumstances.2 We
proceed on that assumption for two reasons. First, the BIA issued
its ruling based on this same assumption. Instead of denying the
motion to reopen outright as time- and number-barred, the BIA opted
to decide the merits of Petitioners' ineffective assistance of
counsel claim. Thus, we take the same approach. See Gicharu v.
Carr, 983 F.3d 13, 17-18 & n.1 (1st Cir. 2020) (adopting the BIA's
assumption that filing deadlines for statutory motions to reopen
may be equitably tolled). Second, the government has not argued
we should do otherwise. Instead, the government notes that the
time and number "limitations may not apply" if "exceptional
circumstances warrant applying equitable tolling of either or both
limitations." Thus, we turn to evaluating the BIA's analysis of
the merits of Petitioners' statutory motion to reopen.
This is an open question in this court. 2 See M.S.C. v. Garland, 85 F.4th 582, 592 n.13 (1st Cir. 2023) ("[W]e have previously assumed without deciding that equitable tolling may be applicable," but "we have not so definitively ruled." (cleaned up)).
- 9 - B. Ineffective Assistance of Counsel
Petitioners argue that their previous attorney, Sanchez,
provided ineffective assistance of counsel, resulting in the
denial of their petition and initial motion to reopen. They point
out that in the Removal Proceedings, the agency found that
Petitioners had failed to submit evidence corroborating their
assertion that L.C.'s disabilities would prevent him from
receiving an education in Guatemala. They contend that Sanchez's
failure to submit this evidence doomed their petition.
The BIA ruled that Petitioners failed to establish
ineffective assistance of counsel. But the BIA's explanation of
its ruling is too thin for us to evaluate the reasoning behind its
resolution of Petitioners' claims.
The BIA's decision does not make clear whether the BIA
concluded that Petitioners' attorney was not deficient or that
Petitioners had not suffered prejudice from any deficient
performance by their attorney. To establish ineffective
assistance of counsel in the context of a removal proceeding, the
individual must demonstrate (1) that their counsel's performance
was constitutionally deficient, and (2) that they were prejudiced
by that deficient performance. See Matter of Lozada, 19 I. & N.
Dec. 637, 638 (BIA 1988), petition denied, Lozada v. INS, 857 F.2d
10, 13 (1st Cir. 1988). In denying Petitioners' second motion to
reopen, however, the BIA rejected their ineffective assistance of
- 10 - counsel claim by stating only that Petitioners "ha[d] not shown
that counsel's representation was so deficient that they suffered
prejudice in this case." From that statement alone, we cannot
discern on which prong of the ineffective assistance of counsel
test the BIA rested its ruling. Because we have no basis for
assuming that the BIA did not rely on the prejudice prong, we focus
our analysis on prejudice.
Importantly, the BIA did not address the critical
question at the heart of Petitioners' ineffective assistance of
counsel claim: whether corroborating evidence about L.C.'s
learning disability could have changed the agency's decision in
the Removal Proceedings. See, e.g., Matter of Melgar, 28 I. & N.
Dec. 169, 171 (BIA 2020) (explaining that, to show ineffective
assistance of counsel, a noncitizen must establish a "reasonable
probability that, but for his attorney's mistakes," they would
have obtained relief). After explaining that Petitioners met the
procedural requirements for an ineffective assistance claim, the
BIA stated in full:
The [Petitioners] have not shown that counsel's representation was so deficient that they suffered prejudice in this case. The [Petitioners] presented evidence to the [IJ] and the [BIA] which was properly considered. Dissatisfaction with the result of the case or the attorney's strategy does not constitute ineffective assistance of counsel. To establish a due process rights violation, a noncitizen "must prove that there was a
- 11 - deficiency or violation and that he was prejudiced by it."
(Citation omitted). The BIA's analysis hinges on the statement
that "[t]he [Petitioners] presented evidence to the [IJ] and the
[BIA] which was properly considered." But this statement does not
shed light on how the BIA assessed whether Petitioners suffered
prejudice from counsel's failure to present additional evidence.
The agency repeatedly and expressly found that
Petitioners failed to submit corroborating evidence over the
course of the Removal Proceedings. And, indeed, Petitioners had
submitted no information about whether L.C. would be able to
receive educational services, or an education at all, in Guatemala.
In denying the petition for cancellation of removal, the IJ focused
on this failure, explaining that there was "fairly limited evidence
relating to [L.C.]." The IJ observed that although L.C.'s clinical
therapist submitted a short letter explaining his diagnoses, she
was not made available to testify nor did she explain "how these
diagnoses would affect L.C. were he to return to Guatemala with
his parents." More broadly, the IJ found that Petitioners
"claim[ed] that in Guatemala, their children would not have an
opportunity to go to school" but "provided no corroborating
evidence in this regard." And although the IJ found Petitioners'
testimony credible, the IJ noted that he required "the respondents
to corroborat[e] their otherwise credible testimony." Absent
- 12 - evidence corroborating Petitioners' claim that L.C.'s special
needs would prevent him from receiving an education in Guatemala,
the IJ was "simply left to speculate as to what the loss of [special
education] services would mean to [L.C.]" and thus found no
exceptional or extremely unusual hardship. On direct appeal, the
BIA "adopt[ed] and affirm[ed]" the decision of the IJ and noted
once again that Petitioners did not "provide sufficient
corroborating documentation regarding how their removal would
adversely affect their children."
In denying Petitioners' second motion to reopen based on
their alleged ineffective assistance of counsel claim, the BIA did
not grapple with any of these prior determinations by the agency.
Instead, by stating that Petitioners "presented evidence to the
[agency] which was properly considered," the BIA overlooked the
fact that the agency had faulted Petitioners for failing to provide
corroborating evidence and denied their claim on that very ground.
Thus, the BIA has not provided a meaningful explanation for its
conclusion that Petitioners were not prejudiced by counsel's
performance. As a result, we remand to the agency so that it can
provide the rationale for its decision. See Aponte, 683 F.3d at
13-15 (remanding where the BIA "made no findings, relied on no
case law, and engaged in no analysis" because "it is extremely
problematic for appeals courts to assess [a BIA decision] absent
a reasonably clear signal as to the precise rationale for [the
- 13 - decision]" (quoting Onwuamaegbu v. Gonzales, 470 F.3d 405, 412
(1st Cir. 2006))).
C. Petitioners' Prima Facie Case
Petitioners recognize that, even if they can overcome
the time and number bars for statutory motions to reopen, the
agency can grant their motion only if they establish a prima facie
case for cancellation of removal. See Smith v. Holder, 627 F.3d
427, 433 (1st Cir. 2010). They claim they have met that standard
here. According to Petitioners, they have established that relief
is necessary to prevent exceptional and extremely unusual hardship
to their children, as demonstrated by the new evidence they
submitted with their second motion to reopen. Specifically, they
contend that their children's medical and educational needs would
go unmet if they were removed to Guatemala. They focus especially
on L.C. Pointing to the BIA's landmark decision in Matter of
Monreal-Aguinaga on the exceptional and extremely unusual hardship
standard, Petitioners argue that "[f]or cancellation of removal,
[the agency] consider[s] the ages, health, and circumstances
of . . . United States citizen relatives." 23 I. & N. Dec. 56, 63
(BIA 2001). Petitioners also note that Monreal itself indicates
that a "strong applicant might have a qualifying child with
. . . compelling special needs in school," just like L.C. Id.
The BIA disagreed that Petitioners met the standard. But because
- 14 - the BIA failed to adequately explain the basis for its conclusion,
we remand.
"[T]he BIA must clearly exposit its chosen path."
Tillery v. Lynch, 821 F.3d 182, 185 (1st Cir. 2016). This
requirement is what allows us "to provide intelligent review on
issues over which [we have] appellate jurisdiction." Id. Thus,
"we do not review inadequately reasoned decisions." Aponte, 683
F.3d at 14. At a minimum, to conduct appellate review, we must be
able to discern the reasoning behind the BIA's conclusions. See
H.H. v. Garland, 52 F.4th 8, 23 (1st Cir. 2022).
In this case, the BIA's analysis of Petitioners' prima
facie case provided in full:
We do not diminish [Petitioners'] evidence of the education needs of their children or the lack of comparable educational services in Guatemala. We have considered the record in its entirety, but the record does not establish [a] prima facie showing of exceptional and extremely unusual hardship in the aggregate. Matter of J-J-G-, 27 I. & N. Dec. 808, 811 (BIA 2020); Matter of Monreal, 23 I. & N. Dec. 56, 63-64 (BIA 2001) ("[A]dverse country conditions in the country of return . . . generally will be insufficient in themselves to support a finding of exceptional and extremely unusual hardship."); Matter of Andazola, 23 I. & N. Dec. 319, 323 (BIA 2002) (observing that reduced educational opportunities and economic detriment are insufficient to establish exceptional and extremely unusual hardship).
(Second and third alterations in original).
- 15 - We hold that the BIA's decision does not sufficiently
illuminate its rationale for finding no exceptional and extremely
unusual hardship on the record here. The BIA's overarching
conclusion is that "the record does not establish [a] prima facie
aggregate." But it is unclear whether the BIA concluded that
(1) as a matter of fact, Petitioners failed to corroborate their
assertions about the serious educational hardship L.C. would face
in Guatemala, or (2) as a matter of law, L.C.'s claimed hardship
would not be exceptional and extremely unusual even if it were
corroborated. Nor does the BIA's opinion contain the analysis we
would expect for either of these conclusions.
The BIA's citation to three of its prior decisions does
not elucidate its reasoning. "While citation alone may be
sufficient in certain instances to shed light on the agency's
reasoning, [no] cited authority does so here." Tillery, 821 F.3d
at 186. For example, the BIA cited Monreal for the proposition
that adverse country conditions "generally will be insufficient in
themselves to support a finding of exceptional and extremely
unusual hardship." 23 I. & N. Dec. at 63-64. But here,
Petitioners did not rely on adverse country conditions generally;
they submitted country conditions evidence to corroborate their
specific assertion that L.C. would lack educational opportunities
in Guatemala due to his disability. This is precisely the sort of
- 16 - country conditions evidence contemplated by Monreal. In fact, the
full quotation from Monreal explains that:
A lower standard of living or adverse country conditions in the country of return are factors to consider only insofar as they may affect a qualifying relative, but generally will be insufficient in themselves to support a finding of exceptional and extremely unusual hardship.
Id. at 63-64 (emphasis added). Petitioners submitted these
conditions to demonstrate that "there would not be opportunities
or programs to assist [L.C.] with his learning disabilities."
Thus, the BIA's citation to Monreal does not clarify its reasoning
about why the facts discussed in Petitioners' second motion to
reopen did not satisfy the exceptional and extremely unusual
hardship standard as it applied to L.C.
The BIA's citation to Matter of Andazola-Rivas for the
proposition that "reduced educational opportunities and economic
detriment are insufficient to establish exceptional and extremely
unusual hardship," 23 I. & N. Dec. 319, 323 (BIA 2002), similarly
fails to explain the basis for its ruling. In that case, the
petitioner expressed a general concern that "the schools are better
in [the United States] than in Mexico," where "the availability of
education [] varies from state to state." Id. at 320, 323. The
BIA held that this logic "would mean that cancellation of removal
would be granted in virtually all cases involving respondents from
developing countries who have young United States citizen or lawful
- 17 - permanent resident children." Id. at 323 n.1. As a result, it
held that generalized concerns about inferior schools could not
demonstrate exceptional and extremely unusual hardship. See id.
But unlike in this case, there was no suggestion that the children
in Andazola had special needs, learning difficulties, or
psychological diagnoses. See id. at 320 (noting that "[t]he
respondent described [her] children's health as 'fine'"). Here,
as the IJ pointed out, it is L.C.'s special needs that "separat[e]
this case from other cases." Thus, the BIA's reliance on Andazola
does not help us understand the basis for the BIA's decision given
the different record here.
Finally, the citation to Matter of J-J-G- does not help
us understand the BIA's reasoning. That case turned on the
noncitizen's failure to corroborate the medical conditions of U.S.
citizen family members. See 27 I. & N. Dec. 808, 812 (BIA 2020).
For example, the BIA noted that there was no evidence in the record
of that case suggesting that the petitioner's daughter would be
unable to continue receiving needed medical treatment in
Guatemala. See id. The very point of Petitioners' second motion
to reopen, however, was to submit evidence that L.C. would be
unable to continue his education in Guatemala -- evidence that
their previous attorney had failed to submit. The BIA in J-G-G-
also held that the other child's diagnoses, including anxiety and
ADHD, were not serious ongoing medical conditions because the
- 18 - record reflected that the treatment goals for that child had been
achieved and that he was no longer receiving support. See id. at
809, 813. But the BIA made no such determination here.
Nor does anything else in the BIA's decision clarify the
basis for its ruling. If the BIA meant to hold that Petitioners
provided insufficient factual corroboration for their claim that
L.C. would be deprived of an education in Guatemala, it did not
explain its reason for so holding. In particular, the BIA does
not appear to have addressed the salient aspects of the country
conditions evidence that would seem to support the claimed hardship
if considered in light of L.C.'s individual circumstances. See
Aguilar-Escoto v. Sessions, 874 F.3d 334, 337 (1st Cir. 2017)
("[W]hile the BIA need not 'discuss every piece of evidence
offered,' it is 'required to consider all relevant evidence in the
record.'" (emphasis omitted) (quoting Lin v. Mukasey, 521 F.3d 22,
28 (1st Cir. 2008))); Duarte De Martinez v. Bondi, 132 F.4th. 74,
84 (1st Cir. 2025) (vacating due to the BIA's failure to consider
the "particular facts presented" (quoting Matter of
Gonzalez-Recinas, 23 I. & N. Dec. 467, 468-69 (BIA 2002))); see
also Contreras v. Bondi, ___ F.4th ___, 2025 WL 1065174, at *7
(1st Cir. Apr. 9, 2025) ("Because the fact-intensive 'exceptional
and extremely unusual hardship' inquiry presents such a high bar,
it is vital that due consideration be given to salient record
evidence in this context."). If the BIA meant to hold that, even
- 19 - if corroborated, being deprived of an education due to the lack of
special education services is not an exceptional and extremely
unusual hardship, we would have expected the BIA to explain why
that is so in light of its own precedent indicating the opposite.
See Monreal, 23 I. & N. Dec. at 63 (explaining that a child who
has "compelling special needs in school" may render their parent
a "strong applicant" for cancellation of removal); Andazola, 23
I. & N. Dec. at 323 (suggesting that a child who would be "deprived
of all schooling or of an opportunity to obtain any education"
would suffer exceptional and extremely unusual hardship). The BIA
did neither.
Thus, the BIA has not provided sufficient explanation to
allow us to review its ruling that Petitioners failed to establish
a prima facie case for relief on the record here. See Adeyanju v.
Garland, 27 F.4th 25, 51 (1st Cir. 2022) ("Where the BIA's
explanation is too thin to allow us to evaluate the claims of
error, we may find an abuse of discretion and remand to the BIA
for further explanation."); Tillery, 821 F.3d at 186-87 (vacating
and remanding where neither the BIA's citations nor the underlying
administrative record "illuminate[s] the BIA's rationale"). We
therefore remand so that the agency can provide that explanation.
- 20 - IV. CONCLUSION
For all these reasons, we grant the petition for review,
vacate the BIA's decision, and remand to the BIA for further
proceedings.
- 21 -