Mukhia v. Holder, No.12 9551, (10th Cir. 1-22-2013) ineffective counsel
The ineffective counsel was barred the the BIA and that Order is attached. Whyhe was not disbarred is a mystery as he is an illegal alien himself. BUT he is thebeneficiary of an approved immigrant petition, he is probably married to a USC. FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT January 22, 2013 Elisabeth A. Shumaker Clerk of Court LATIKA PRADHAN MUKHIA, Petitioner, v. No. 12-9551 (Petition for Review) ERIC H. HOLDER, JR., United States Attorney General, Respondent. ORDER AND JUDGMENT* Before KELLY, McKAY, and O’BRIEN, Circuit Judges. Latika Pradhan Mukhia petitions for review of the Board of Immigration Appeals’ (“BIA” or “Board”) denial of her motion to reopen removal proceedings based on ineffective assistance of counsel and a material change in country * After examining the briefs and appellate record, this panel has determined unanimously to grant the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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.
conditions. Exercising jurisdiction under 8 U.S.C. § 1252(a), we remand to the BIAfor further proceedings consistent with this order and judgment. BACKGROUND Ms. Mukhia is a native and citizen of Nepal. After legally entering the UnitedStates with her adult son in November 2004, they overstayed their six-monthauthorized period. Ms. Mukhia’s husband had legally entered the United States in2001, and he also remained in the country illegally. In August 2005, Ms. Mukhiaretained Ravi Kanwal as her counsel, and on August 30 she filed an applicationseeking asylum for herself and her husband.1 After an asylum officer found aspectsof her application not credible, the Department of Homeland Security (“DHS”)served Ms. Mukhia with a Notice to Appear on May 2, 2006, charging her asremovable pursuant to 8 U.S.C. § 1227(a)(1)(B). She appeared before animmigration judge (“IJ”) in consolidated removal proceedings with her husband andson. They conceded removability and sought relief in the form of asylum,withholding of removal, and protection from removal under the Convention AgainstTorture. Ms. Mukhia claimed a fear of persecution and torture based on her politicalopinions and her membership in particular social groups. At the IJ hearing, shetestified that the Maoists in Nepal had threatened her and demanded money from her,threatened and beaten her husband and son, and bombed their house. She asserted1 Ms. Mukhia’s son filed a separate asylum application. -2-
that the Maoists were interested in her and her family members because they spokeout against the Maoist party and because of their membership in anti-Maoistorganizations. She indicated that she was a member of both the Nepali CongressParty and a related teachers’ organization. The IJ found that Ms. Mukhia had not presented any evidence corroboratingher testimony. In denying her applications for relief, the IJ stated that her “testimonywas not sufficiently detailed, consistent, or believable to provide a plausible andcoherent account for the basis for her fears and thus cannot suffice to establish hereligibility for asylum without corroborating evidence.” Admin. R. at 225. The IJordered Ms. Mukhia, her husband, and her son removed to Nepal. They appealed theIJ’s removal order to the BIA, alternatively seeking a remand to the IJ forconsideration of additional evidence. That evidence included a letter from the schoolwhere Ms. Mukhia had taught in Nepal and a statement from a Nepali policeinspector about reports that she had filed regarding her conflicts with the Maoists.The Board dismissed the appeal on October 23, 2008, agreeing with the IJ thatMs. Mukhia “failed to provide sufficient evidence to carry her burden of proof andpersuasion for eligibility for [relief].” Id. at 192. The BIA also denied the motion toremand to the IJ, stating: The letters the respondent has submitted on appeal are of limited evidentiary value. They are uncertified, unauthenticated, copies of letters. Moreover, the respondent indicates that the letter from the police was procured by bribery. We do not find that the respondent has submitted sufficient new, material, and previously unavailable evidence to support her motion to remand. -3-
Id. (citation omitted). Mr. Kanwal, Ms. Mukhia’s counsel, then filed a motion to reopen. Hesubmitted an affidavit from her explaining why she failed to present corroboratingevidence at the IJ hearing, and he attached the originals of the documents that she hadfiled with her motion to remand. The BIA denied the motion to reopen, finding thatMs. Mukhia did not explain how the letter from the school in Nepal came into herpossession and failed to establish that it was unavailable at the time of the IJ hearing.It also found that the Nepali police inspector’s statement remained unauthenticated,despite her explanation that she obtained it with the assistance of former Nepalipolice officers living in the United States and by way of a bribe. DHS removed Ms. Mukhia’s husband to Nepal on August 12, 2010. AfterDHS subsequently detained her son, she retained new counsel. On October 28, 2011,she filed her second motion to reopen and a motion to reconsider. She asserted twogrounds for her late and successive motion to reopen: ineffective assistance of herformer counsel, Mr. Kanwal, and a change of country conditions in Nepal. As to Mr. Kanwal’s ineffective assistance, Ms. Mukhia asserted that he failedto respond to her repeated inquiries about the status of her case; he did not advise herthat her appeal had been dismissed by the BIA; he filed a motion to reopen withouther knowledge and failed to inform her that it was denied; and he did not give hertimely and appropriate legal advice about the documentary evidence required for hercase, including the need to authenticate documents. Ms. Mukhia also claimed that -4-
she signed an affidavit prepared by Mr. Kanwal, not knowing that it falsely assertedthat she had paid a bribe to obtain the statement from the Nepali police. Shemaintained that, as a result of Mr. Kanwal’s ineffective assistance, her asylum claimwas denied based on a lack of corroborating evidence. Ms. Mukhia also submittedevidence that in July 2009 Mr. Kanwal had been suspended for two years frompracticing before immigration tribunals for engaging in unethical and unprofessionalconduct, working as an attorney in Colorado without authorization, failing to complywith his non-immigrant visitor visa, and remaining in the United States illegally since1995. The evidence indicated that, on similar grounds, Mr. Kanwal had also beensuspended from the practice of law by the Colorado Supreme Court. Regarding her claim of changed country conditions in Nepal, Ms. Mukhiaasserted that her new evidence demonstrated that the Maoists had gained politicalcontrol in Nepal and were committing atrocities, intimidation, torture, and killings.She sought to file a successive asylum application based on these alleged changes incountry conditions in Nepal. The BIA first found that Ms. Mukhia’s motion to reconsider was untimely andthat she presented no exceptional situation warranting sua sponte reconsideration.2 Italso found that her motion to reopen was both untimely and number-barred. The2 Ms. Mukhia does not challenge the BIA’s denial of her motion forreconsideration in either of her appeal briefs. She has therefore waived appellateconsideration of that issue. See Kabba v. Mukasey, 530 F.3d 1239, 1248 (10th Cir.2008). -5-
Board next addressed Ms. Mukhia’s claim of ineffective assistance of counsel, as abasis for equitable tolling of the time and numerical limits for her motion to reopen.It found that she had met the requirements of Matter of Lozada, 19 I. & N. Dec. 637(BIA 1988), and that she had shown that Mr. Kanwal did not perform with sufficientcompetence. But the BIA concluded that she failed to show prejudice. Finally, as toher claim of a change in country conditions, the Board found that she failed to showchanged circumstances that were material to her claims for relief. The BIA thereforedenied her motion to reopen as untimely and number-barred. Ms. Mukhia filed atimely petition for review of the BIA’s order. DISCUSSION We review the BIA’s denial of a motion to reopen for an abuse of discretion.Infanzon v. Ashcroft, 386 F.3d 1359, 1362 (10th Cir. 2004). “The BIA abuses itsdiscretion when its decision provides no rational explanation, inexplicably departsfrom established policies, is devoid of any reasoning, or contains only summary orconclusory statements.” Id. (quotation omitted). In this case, we cannot perform ameaningful review of the Board’s decision, which fails to sufficiently articulate itsreasoning. See Mickeviciute v. INS, 327 F.3d 1159, 1162 (10th Cir. 2003). Wetherefore remand to the BIA for further explanation of the bases for its denial ofMs. Mukhia’s motion to reopen. -6-
Ineffective Assistance of Counsel In general, an alien may file only one motion to reopen, which must be filedwithin 90 days of the final administrative decision. See 8 C.F.R. § 1003.2(c)(2). Butthe time limitation on a motion to reopen may be equitably tolled based on a claim ofineffective assistance of counsel. See Riley v. INS, 310 F.3d 1253, 1258 (10th Cir.2002).3 “[T]he Fifth Amendment guarantees aliens subject to deportation the right toa fundamentally fair deportation proceeding.” Osei v. INS, 305 F.3d 1205, 1208(10th Cir. 2002). And “although there is no right to appointed counsel in deportationproceedings,” an alien “can state a Fifth Amendment violation if he proves thatretained counsel was ineffective and, as a result, the petitioner was denied afundamentally fair proceeding.” Id. To succeed on a claim of ineffective assistance of counsel, an alien must showthat she was prejudiced by her counsel’s ineffective performance. See Ochieng v.Mukasey, 520 F.3d 1110, 1115 (10th Cir. 2008) (rejecting ineffective-assistanceclaim based on failure to show prejudice); see also Lozada, 19 I. & N. Dec. at 638(stating alien “must show . . . that he was prejudiced by his representative’s3 We noted in Riley that other circuits have held that the numerical limitation onmotions to reopen can be “equitably tolled” based on a claim of ineffective assistanceof counsel. 310 F.3d at 1257-58. In Riley, only the time limitation was at issue.See id. at 1257. Here the Attorney General does not argue that Ms. Mukhia’s motionto reopen was barred solely because it was her second such motion, nor did the BIAdeny her motion on that basis. Therefore, we need not resolve in this case whether aclaim of ineffective assistance of counsel provides an exception to the numericallimitation on motions to reopen. -7-
performance”). An alien shows prejudice by demonstrating that, but for hercounsel’s ineffective performance, the result of her case would have been different.Cf. Duran-Hernandez v. Ashcroft, 348 F.3d 1158, 1163 (10th Cir. 2003) (rejectingdue-process claim in removal proceedings based on alien’s failure to show thatadditional procedures would have changed the result in his case); see also Sako v.Gonzales, 434 F.3d 857, 864 (6th Cir. 2006) (holding alien “must establish that, butfor the ineffective assistance of counsel, he would have been entitled to [relief]”).Here, Ms. Mukhia contended that Mr. Kanwal failed to advise her regarding thedocuments necessary to support her asylum claim or the authentication necessary tomake her evidence admissible, and as a result, her asylum application was deniedbased on a lack of corroborating evidence. The BIA concluded that Ms. Mukhia failed to establish prejudice as a result ofher former counsel’s ineffective assistance. In support of that determination, theBoard simply reiterated its previous findings that the corroborating documentssubmitted by her former—ineffective—counsel were not authenticated and failed toestablish chain of custody or previous unavailability. Without more, these findingsdo not provide a rational explanation for the BIA’s conclusion that Ms. Mukhia failedto show prejudice. The Attorney General offers several possible reasons to support the Board’sdecision, including its contention that Ms. Mukhia failed to submit any additionalcorroborating evidence with her motion to reopen and did not attempt to authenticate -8-
the evidence she had previously submitted. But the BIA’s decision did not articulateany of the reasoning advocated by the Attorney General, and we “may not uphold anagency action on grounds not relied on by the agency.” Mickeviciute, 327 F.3d at1163 (quotations omitted). Rather, “[t]he agency must make plain its course ofinquiry, its analysis and its reasoning. After-the-fact rationalization by counsel . . .will not cure noncompliance by the agency with these principles.” Id. at 1163-64(quotation omitted). “Because an agency has a duty not only to reach an outcome,but to explain that outcome, we intrude on the agency’s authority . . . by supporting aresult reached by the agency with reasoning not explicitly relied on by the agency.”Id. at 1165. We therefore remand to the BIA for further explanation of itsdetermination that Ms. Mukhia failed to show prejudice as a result of her formercounsel’s ineffective assistance. Changed Country Conditions “Under 8 U.S.C. § 1229a(c)(7)(C)(ii) a motion to reopen to apply for asylumbased on proof of changed country conditions is not barred by the time restriction onfiling motions to reopen if ‘such evidence is material and was not available andwould not have been discovered or presented at the previous proceeding.’” Wei v.Mukasey, 545 F.3d 1248, 1254 (10th Cir. 2008) (quoting § 1229a(c)(7)(C)(ii)).44 Unlike § 1229a(c)(7)(C)(ii), the corresponding regulation also provides for anexception to the numerical limitation applicable to motions to reopen based on proofof changed country conditions. See 8 C.F.R. § 1003.2(c)(3)(ii). But, again, becausethe BIA did not decide and the Attorney General does not contend that Ms. Mukhia’s (continued) -9-
Ms. Mukhia argued that the BIA should reopen her removal proceedings to allow herto file a successive asylum application based on changed political circumstances inNepal, specifically changes resulting from the Maoists becoming the ruling party. The BIA rejected Ms. Mukhia’s contention, stating that “[e]ven if we assumechanged country conditions or changed circumstances in Nepal (which we do not),the respondent does not show that any such changed country conditions or changedcircumstances are material to her claims for asylum and withholding of removal.”Admin. R. at 8. In support of this conclusion, the Board did not discuss any of theevidence that Ms. Mukhia had submitted or explain why it failed to show changedcountry conditions that are material to her claims for relief. Instead, the BIA statedonly that she failed to allege that her husband had been mistreated by the Maoistssince his removal to Nepal in August 2010. Once again, the Attorney General attempts to support the BIA’s decision withhis own detailed comparison of the conditions in Nepal at the time of Ms. Mukhia’sIJ hearing and when she filed her second motion to reopen. As noted, however, theBoard did no such analysis. And while we have held that the continued presence ofan alien’s family members in the country of removal without further harm undercutsan asserted fear of persecution, see Ritonga v. Holder, 633 F.3d 971, 977 (10th Cir.2011), neither the BIA nor the Attorney General has cited a case holding that factormotion to reopen was barred solely because it was her second such motion, “[w]eexpress no view on whether . . . § 1003.2(c)(3)(ii) provides a valid exception to thenumerical limitation on motions to reopen, Wei, 545 F.3d at 1254 n.2. - 10 -
to be dispositive of a claim of material changes in country conditions. Nor is it clearfrom the BIA’s order that it intended to rely solely on that ground in reaching itsdecision. Because the Board did not sufficiently articulate its reasoning, we cannotperform a meaningful review. See Mickeviciute, 327 F.3d at 1162. We thereforedirect the BIA, on remand, to explain its bases for concluding that Ms. Mukhia failedto show changed circumstances in Nepal that are material to her claims for relief. CONCLUSION For the reasons stated above, we remand to the BIA for further explanation ofits decision denying Ms. Mukhia’s motion to reopen. In doing so, we take noposition on whether there are defensible reasons for denying her motion. “Wemaintain merely that such reasons must come from the BIA in the first instance, andwe remand for that explanation.” Id. at 1164. Entered for the Court Monroe G. McKay Circuit Judge - 11 -
, • •• UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW OFFICE OF THE CHIEF IMMIGRATION JUDGE File No. D2009-053 In the Matter of ) ) RAVINDRA SINGH KANWAL ) aka Ravi Kanwal ) ) Respondent ) ) __________________________________________________________ ) ON BEHALF OF RESPONDENT: ON BEHALF OF DHS: ProSe Rachel A. McCarthy Bar Counsel U.S. Citizenship and Immigration Services Department of Homeland Security 70 Kimball A venue, Room 103 S. Burlington, VT 05403 ON BEHALF OF EOIR: Jennifer Barnes Bar Counsel Office of the General Counsel 51 07 Leesburg Pike, Suite 2600 Falls Church, VA 22041 FINAL ORDER OF DISCIPLINE These disciplinary proceedings were commenced against Ravindra Singh Kanwal, aka Ravi Kanwal, on March 19, 2009 by U.S. Citizenship and Immigration Services (USCIS), Department of Homeland Security filing a Notice of Intent to Discipline (NID) (Exhibit 1). The Executive Office for Immigration Review, by its Bar Counsel, joined these disciplinary proceedings on March 24, 2009.
I • • On April22, 2009, Respondent filed an answer in which he admitted the allegations in the NID and requested a hearing on the appropriate disciplinary sanction. The proceedings were transferred to the Office of the Chief Immigration Judge (OCIJ) and Administrative Law Judge Ellen K. Thomas was assigned to preside as the adjudicating official in these proceedings. A pre-hearing telephonic conference was conducted on June 23, 2009 and continued to July 7, 2009 in order to provide the parties an opportunity to explore the possibility of a resolution without a formal hearing. The Court acknowledges receipt of the Consent to Entry of Final Order of Discipline ("Consent") executed by Bar Counsel for USC IS, DHS and Respondent. The terms of the Consent are incorporated as if fully set forth below and the Court accepts and approves of the terms of the Consent in its Final Order of Discipline in this matter. The Court makes the following findings of fact: 1. Respondent is an attorney admitted to the practice of law in Colorado in 1992, currently in active status. 2. Respondent was also admitted to the practice of law in Illinois in 1994, Ohio in 1990 and Louisiana in 1988 and is currently in "inactive" status in all of these jurisdictions. 3. Between on or about 1999 and April 2009 Respondent filed in excess of four thousand, seven hundred (4,700) applications or petitions seeking immigration benefits for clients with USCIS and its predecessor agency, the Immigration and Naturalization Service (INS). 4. Respondent also engaged in acts constituting representation before the Immigration Courts. 5. Respondent was admitted to the United States on December 29, 1991 as a nonimmigrant worker for a specific employer with permission to remain until August 3, 1994. 6. Respondent applied for and was granted a change in status to that of a nonimmigrant visitor for business, effective January 23, 1995 for which he was granted an extension, with permission to remain in the United States until December 30, 1995. 7. Respondent, on or after January 23, 1995, failed to maintain his status or comply with the conditions of his change in status to nonimmigrant visitor for business, in that he engaged in local employment and/or labor for hire. 8. Respondent remained in the United States beyond December 30, 1995 without authorization from INS. 9. On January 26, 2009, Respondent was interviewed by an officer of Immigration and Customs Enforcement (ICE), DHS, regarding his immigration status in the United States and in a written statement, Respondent admitted that he last entered the United States in December 1991 or 1992 with a time-limited nonimmigrant employment based visa, that the visa had expired and that he had no lawful immigration status in the United States.
• •10. On January 26,2009, Respondent was issued a Notice to Appear (NTA) that was amended on February 13, 2009, and that he is currently within the jurisdiction of the Immigration Court for removal proceedings.11. Respondent has filed, or is the named beneficiary of, applications for immigration benefits with USCIS, DHS but that he does not have lawful immigration status at this time.12. Between on or about December 30, 1995 to present, Respondent knowingly, or with reckless disregard, engaged in employment as an attorney at a "full service immigration law firm, which concentrates its practice assisting citizens in obtaining lawful status in the United States" at a time when he did not have lawful status in the United States, in violation of U.S. immigration law.13. Between on or about December 30, 1995 to present, Respondent knowingly, or with reckless disregard, engaged in employment as an attorney as described in paragraph 11 above, at a time when he did not have authorization for employment from USCIS, or INS, in violation of U.S. immigration law.WHEREFORE, having made the above-described findings of fact, the Court nowmakes the following conClusions of law: The Court finds, by clear, unequivocal, and convincing evidence, thatRespondents conduct violated Rule 1292.3(b), as set forth in Rule 1003.102, and thatit is in the public interest to discipline him, in that: 1. Respondent has engaged in unethical conduct; 2. Respondent has engaged in unprofessional conduct that is prejudicial to the administration of justice or undermines the integrity of the adjudicative process; and 3. He has engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation deemed to be a failure to maintain personal integrity. The Court finds that Respondent has freely and voluntarily, withdrawn his requestfor a hearing on the issue of the appropriate disciplinary sanction to impose in thisproceeding as a result of his violations of the Rules of Professional Conduct forPractitioners as set forth in the NID.The Court, having considered the entire record in this proceeding, the Consent, andthe American Bar Associations Standards for Imposing Lawyer Sanctions (ABAStandards), issues the following order regarding disciplinary sanctions:ORDER: The Court hereby suspends the Respondent from practice before the Board,the Immigration Courts, and the DHS, for a period of two years, effective the date onwhich this order is signed by the Court.
• •FURTHER ORDER: The respondent is directed to promptly notify, but no later thanJuly 24, 2009, in writing, any clients with cases currently pending before the Board,the Immigration Courts or the DHS that he has been suspended from practicingbefore these bodies. Respondent shall maintain records to evidence compliance withthis order.FURTHER ORDER: The respondent is also instructed to notify Bar Counsel,USCIS, DHS and EOIR Disciplinary Counsel of any further disciplinary actionagainst him.FURTHER ORDER: The respondent may petition the Board for reinstatement topractice before the Board, Immigration Courts, and DHS under 8 C.F.R.§ 1003.107(b) as more fully described in the Consent document. In order to bereinstated, the respondent must demonstrate that he meets the definition of anattorney, as set forth in 8 C.F.R. § l.l(t), including, but not limited to, the following: a. Respondent must demonstrate that he has been reinstated to practice and in good standing in Colorado and in any other jurisdiction in which he is admitted to practice in "active" status; b. Respondent must demonstrate that he has lawful immigration status in the United States and that he has current authorization for employment issued by USCIS, DHS; c. If Respondents lawful immigration status is not that of lawful permanent residence, he must provide DHS Bar Counsel and EOIR Disciplinary Counsel, at least thirty days prior to the expiration of his lawful immigration status, with a copy of his application for an extension or change of his immigration status; d. If the authorization for employment, if any, granted to Respondent is time- limited, he must provide DHS Bar Counsel and EOIR Disciplinary Counsel, at least thirty days prior to the expiration of his time-limited employment authorization, with a copy of his application for extension of employment authorization.FURTHER ORDER: The Court directs that the contents of this notice be madeavailable to the public, including at Immigration Courts and appropriate offices of theDHS.SO ORDERED. ELLEN K. THOMAS Administrative Law Judge
• • CERTIFICATE OF SERVICEI hereby certify that on this 8th day of July, 2009, I have served copies of the foregoing FinalOrder of Discipline on the following persons at the addresses indicated:Ravindra Singh Kanwal1565 Franklin StreetDenver, CO 80218Jennifer J. BarnesBar CounselOffice of the General Counsel5107 Leesburg Pike, Suite 2600Falls Church, VA 22041Rachael McCarthyBar CounselOffice of the Chief Counsel, CISDepartment of Homeland Security70 Kimball Avenue, Room 103S. Burlington, VT 05403Mark L. PasierbChief Clerk of the Immigration CourtOffice of the Chief Immigration Judge ~Ltf¥-,5107 Leesburg Pike, Suite 2500Falls Church, VA 22041 Paralegal Specialist to Ellen K. Thomas Administrative Law Judge Office of the Chief Administrative Hearing Officer 5107 Leesburg Pike, Suite 2519 Falls Church, VA 22041 (703) 305-1742 Phone (703) 305-1515 Fax