Esteban-Marcos v. Barr

• Court: Court of Appeals for the Tenth Circuit
• Decided: July 8, 2020
• Docket: 19-9561
• Status: Unpublished

Opinion

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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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

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