                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 16a0229n.06

                                          No. 15-3345                                  FILED
                                                                                  Apr 28, 2016
                          UNITED STATES COURT OF APPEALS                     DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT

NATIVIDAD MATIAS MENDOZA,                                 )
                                                          )
       Petitioner,                                        )
                                                          )     ON PETITION FOR REVIEW
v.                                                        )     FROM THE UNITED STATES
                                                          )     BOARD OF IMMIGRATION
LORETTA E. LYNCH, Attorney General,                       )     APPEALS
                                                          )
       Respondent.                                        )


BEFORE: KETHLEDGE and WHITE, Circuit Judges; and COHN, District Judge.

       HELENE N. WHITE, Circuit Judge.

       Natividad Matias Mendoza seeks review of the Board of Immigration Appeals’ (“BIA”)

order dismissing her appeal from the immigration judge’s (“IJ”) denial of her motion to reopen.

Because the BIA’s rationale for finding that Mendoza was not diligent in pursuing relief from

her in-absentia removal order is not supported by the record, we GRANT the petition in part and

REMAND to the BIA for further proceedings. We otherwise DENY the petition for review.

                                                I.

       Mendoza is a citizen of Guatemala and the mother of three United States children. She

entered the United States in 1998 and filed an asylum application in February 2003. Shortly

thereafter, the Department of Homeland Security (“DHS”) charged her with removal for being

present in the United States without admission or parole. The IJ set a hearing for April 2, 2004,


       
         The Honorable Avern Cohn, Senior United States District Judge for the Eastern District of
Michigan, sitting by designation.
No. 15-3345, Mendoza v. Lynch


in Detroit. Eleven days before the hearing, Mendoza filed a motion to change venue to Chicago,

which was closer to her residence in Grand Island, Nebraska. The IJ denied the motion as

untimely. Neither Mendoza nor her counsel appeared at the April 2 hearing, and the IJ ordered

Mendoza removed in absentia.

          In November 2012, Mendoza moved to reopen the proceedings. Mendoza submitted a

declaration stating that her family moved to Nebraska in March 2004 and that her husband’s boss

offered to put them in touch with an attorney who would help them. Mendoza was then

introduced to an attorney, Bart Chavez, who looked at her documents and told her that he would

take care of transferring her immigration case to Nebraska in exchange for a $3000 retainer.

Chavez advised Mendoza not to attend the April 2004 hearing, and in subsequent conversations

told Mendoza to be patient, not to worry, and to pay his legal fees, which she paid off in January

2005. After April 2005, Chavez generally stopped taking or returning Mendoza’s calls, but

when they did speak, including in April 2006 and December 2011, Chavez reiterated that he was

handling Mendoza’s case and that she needed to be patient. In March 2012, Mendoza moved to

Oakland, California, and hired a new attorney (“second counsel”). Second counsel discovered

the removal order and that Chavez had been disbarred, and brought Mendoza’s first motion to

reopen.

          The IJ denied the motion to reopen, finding that Mendoza had not exercised due diligence

in pursuing her claims because she failed to inquire about her case between 2006 and 2011 and

delayed eight months in filing her motion to reopen after hiring second counsel (from March –

November 2012). Mendoza did not appeal; she claims that second counsel did not inform her

that she could appeal the denial of her motion to reopen, and simply told her that he could not

help her further.



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No. 15-3345, Mendoza v. Lynch


        Mendoza subsequently retained current counsel, who, in March 2013, filed a second

motion to reopen along with an I-589 petition for asylum and withholding of removal. In her

motion to reopen, Mendoza argued, among other things, that Chavez’s and second counsel’s

ineffectiveness constituted exceptional circumstances, and that she had evidence of new, material

country conditions to support her asylum claim.            Mendoza submitted another declaration,

clarifying that she had not sought new representation in Oakland until May 2012, and that it was

not until “several months after hiring” second counsel that she learned of the April 2004 order of

removal.1 (AR 294.)

        In addition, her declaration stated that she was born in 1982 in Todos Santos, Guatemala.

A military massacre occurred in March 1982 that resulted in her mother being beaten and

sexually assaulted by military forces. Prior to the massacre, her father disappeared, possibly to

join the guerilla forces fighting the military. When she was ten years old, her mother’s live-in

boyfriend, who routinely beat her, attempted to sexually abuse her on multiple occasions. One

night in August 1992, the Civil Patrol came to Mendoza’s house, accused her of being a “child of

the guerilla,” and kidnapped her mother for two days. (AR 291.) The Civil Patrol also told

Mendoza that if she ever left and tried to return to Todos Santos, she would be taken away

forever. Later in 1992, Mendoza left Todos Santos for Mexico and stayed for six years. In 1998,

she entered the United States because coworkers were discriminating against her and threatening

her with sexual abuse.




        1
          In the previous paragraph of her declaration, Mendoza states that “[i]t wasn’t until another
attorney looked into the status of the case at a free legal clinic in Oakland, California in approximately
May 2012 that I realized the transfer had been denied, and that I had an order of removal.” (AR 294.)
Mendoza explained in a brief before the BIA that after learning through the clinic that there had been a
removal order, Mendoza was referred to second counsel, who gathered her records and moved to reopen
her case.
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No. 15-3345, Mendoza v. Lynch


          Mendoza also submitted a February 4, 2013, report by Michael Smith about “La

Seguridad.” According to Smith, La Seguridad is a paramilitary organization that operates as the

local security committee in Todos Santos, Guatemala, in cooperation with the national police. It

evolved in 2000 from the Civil Patrol, which was organized and directed by the military to

repress the population in indigenous areas, under the guise of preventing guerillas from entering

the indigenous communities. In 2007, La Seguridad made it mandatory for each household to

supply one person to patrol approximately twice per month or pay a fee; those who refused were

punished. La Seguridad has beaten outsiders and detained them in jail. It has also sexually

assaulted indigenous women. In her asylum application, Mendoza alleged that La Seguridad

detained, beat, and interrogated her husband in 2007 for being a guerilla sympathizer, and that

the Civil Patrol had done the same thing to him in 1992.            La Seguridad also threatened

Mendoza’s husband with death if he returned.

          Additionally, Mendoza submitted a newspaper article dated May 20, 2013, reporting that

Guatemala’s high court overturned former dictator Efrain Rios Montt’s genocide conviction and

ordered that trial be reset. According to the article, Rios Montt’s government launched a brutal

offensive against Maya villagers, raping, torturing, and killing those suspected of helping

Marxist rebels. The article noted that it was unclear when the trial might restart.

          The IJ denied Mendoza’s second motion to reopen. The BIA dismissed Mendoza’s

appeal, finding that her motion was time- and number-barred because she failed to show a

material change in country conditions or prima facie asylum eligibility. The BIA also concluded

that Mendoza failed to show due diligence in moving to reopen her in-absentia removal order,

and thus she was not entitled to equitable tolling. (AR 5.) Mendoza filed a timely petition for

review.



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No. 15-3345, Mendoza v. Lynch


                                               II.

       Where, as here, the BIA issues its own decision, we review the BIA’s decision as the

final agency determination. Khalili v. Holder, 557 F.3d 429, 435 (6th Cir. 2009). Because the

BIA has “broad discretion” to grant or deny a motion to reopen, we review the denial of a motion

to reopen under the abuse-of-discretion standard. I.N.S. v. Doherty, 502 U.S. 314, 323 (1992)

(internal quotation marks and citation omitted); Haddad v. Gonzales, 437 F.3d 515, 517 (6th Cir.

2006). The BIA abuses its discretion when it fails to provide a rational explanation, inexplicably

departs from established policies, or rests its decision on an impermissible basis such as

invidious discrimination. Allabani v. Gonzales, 402 F.3d 668, 675 (6th Cir. 2005). Under this

standard, factual findings are reviewed for substantial evidence and will not be overturned

“unless any reasonable adjudicator would be compelled to conclude to the contrary.” Khalili,

557 F.3d at 435 (internal quotation marks and citation omitted).

                                               A.

       Mendoza first argues that the BIA abused its discretion in determining that her proffered

evidence of changed country conditions was insufficient to warrant reopening her proceedings.

This argument is governed by 8 U.S.C. § 1229a(c)(7)(C), which generally provides a 90-day

time limit to file a motion to reopen after entry of a final administrative order of removal.

However, the time limitation is waived if the motion is based on “changed country conditions

arising in the country of nationality . . . if such evidence is material and was not available and

would not have been discovered or presented at the previous proceeding.”                8 U.S.C.

§ 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.23(b)(4)(i). “In determining whether evidence

accompanying a motion to reopen demonstrates a material change in country conditions that

would justify reopening, [the BIA] compare[s] the evidence of country conditions submitted with



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No. 15-3345, Mendoza v. Lynch


the motion to those that existed at the time of the merits hearing below.” Bi Feng Liu v. Holder,

560 F.3d 485, 491 (6th Cir. 2009) (alterations in original) (quoting Matter of S-Y-G, 24 I. & N.

Dec. 247, 253 (B.I.A. 2007)).

       The BIA reasonably determined that Mendoza did not meet her burden. The article

Mendoza primarily relies upon establishes that La Seguridad has been operating since 2000,

prior to Mendoza’s April 2004 hearing. Moreover, the author of the article acknowledges that

most of the information he presents simply confirms what he had previously heard about La

Seguridad. The only post-2004 change that the article cites occurred in 2007, when it became

obligatory for each household to supply one patroller or pay a fee to La Seguridad, but Mendoza

does not show why this change is material to her claim that she will face persecution based on

her particular social group or political opinion. In her asylum application, Mendoza asserts that

her husband returned to Guatemala in 2007 and was beaten by members of La Seguridad, just as

members of La Seguridad’s predecessor had beaten him in 1992; this does not support a change

in country conditions. Finally, the news article regarding the trial of a former dictator does not

support a finding of materially changed country conditions. Although Mendoza argues that the

former dictator’s trial being reset “places Guatemala’s indigenous population under new threat

from established elites,” nothing in the record supports her assertion.          (Pet’r’s Br. 20-21.)

Accordingly, the BIA did not abuse its discretion in determining that Mendoza failed to establish

a material change in country conditions with previously unavailable, material evidence.2

       Because Mendoza failed to establish a material change in country conditions, we need not

address her alternative argument that she established prima facie eligibility for relief. See Zhang


       2
          Mendoza also makes reference in her brief to other materials, including country reports, that
were not made part of the administrative record. Accordingly, we may not consider this evidence. See
Porras v. Holder, 572 F. App’x 436, 438 (6th Cir. 2014) (quoting Lin v. Holder, 565 F.3d 971, 979 (6th
Cir. 2009)).
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No. 15-3345, Mendoza v. Lynch


v. Mukasey, 543 F.3d 851, 854 (6th Cir. 2008) (describing the failure to offer previously

unavailable, material evidence as an “independent ground[]” for denial of a motion to reopen

(quoting Doherty, 502 U.S. at 323)); Chen v. Holder, 397 F. App’x 111, 119 (6th Cir. 2010)

(“Chen also argues that the BIA abused its discretion in holding that she failed to make a prima

facie case of eligibility for asylum. However, we need not address this argument, as the BIA

properly denied Chen’s motion based on her failure to show materially changed country

conditions.”).

                                                B.

       An alien who does not attend a proceeding after written notice has been provided to the

alien or the alien’s counsel of record shall be ordered removed in absentia if the DHS establishes

that notice was provided and the alien is removable. 8 U.S.C. § 1229a(b)(5)(A). An in-absentia

removal order may be rescinded upon a motion to reopen filed within 180 days after the date of

the in-absentia order if the failure to appear was because of exceptional circumstances. 8 U.S.C.

§ 1229a(b)(5)(C)(i). Although it is undisputed that Mendoza filed her motion well beyond the

180-day period, Mendoza argues that the BIA abused its discretion in finding that she was not

entitled to equitable tolling due to a lack of diligence in seeking relief. The DHS appears to

concede that this deadline is subject to equitable tolling, and this court has also recognized that

an alien who is prejudiced by ineffective assistance of counsel may be entitled to equitable

tolling of a deadline for filing a motion to reopen. See Mezo v. Holder, 615 F.3d 616, 620 (6th

Cir. 2010).

       In determining whether equitable tolling is applicable to an otherwise time-barred

motion, we generally consider the following factors: “(1) the petitioner’s lack of notice of the

filing requirement; (2) the petitioner’s lack of constructive knowledge of the filing requirement;



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No. 15-3345, Mendoza v. Lynch


(3) diligence in pursuing one’s rights; (4) absence of prejudice to the respondent; and (5) the

petitioner’s reasonableness in remaining ignorant of the legal requirement for filing his claim.”

Id. (internal quotation marks omitted) (quoting Barry v. Mukasey, 524 F.3d 721, 724 (6th Cir.

2008)). The BIA did not address any factor except Mendoza’s diligence in pursuing her rights,

nor does the DHS do so on appeal. Rather, the DHS argues, as the BIA found, that equitable

tolling is inappropriate because Mendoza failed to establish diligence. See id. (“In past cases, we

have declined to equitably toll the time period for filing motions to reopen . . . where the

petitioner failed to exercise diligence in pursuing his rights.” (citations omitted)).

       When analyzing diligence where ineffective assistance of counsel is alleged, this court

looks to the petitioner’s actions during the periods before and after the alleged ineffectiveness

was discovered. See id. at 621. For the pre-discovery period, we have recognized that “[t]here is

some authority suggesting that [the petitioner] was obligated to make reasonable inquiries

regarding the status of her [case].” Gordillo v. Holder, 640 F.3d 700, 706 (6th Cir. 2011). But,

we and other circuits have also recognized that aliens who are not well-versed in United States

immigration law can easily be led astray by fraudulent assurances from unscrupulous counsel.

See Mezo, 615 F.3d at 621 (“Given the evidence that [the petitioner] hired an attorney and was

lied to by that attorney, combined with her lack of understanding of our Byzantine immigration

laws, the likely cause of her delay in moving to reopen was not a lack of due diligence.”);

Iturribarria v. I.N.S., 321 F.3d 889, 899 (9th Cir. 2003) (“The INS’ suggestion that petitioners,

who were in an extremely vulnerable position as the subjects of pending deportation

proceedings, should be considered to have lost their rights because they were beguiled by [a

representative’s] assurances, contradicts the very basis for providing equitable relief. Petitioners

were unfamiliar with the INS’ administrative process and relied on [their representative] to



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No. 15-3345, Mendoza v. Lynch


protect their interests.” (alterations in original) (quoting Rodriguez-Lariz v. I.N.S., 282 F.3d

1218, 1225 (9th Cir. 2002))). The focus for both periods is not the mere passage of time or

whether the petitioner exercised maximum diligence, but rather, under the totality of the

circumstances, whether the petitioner was reasonably diligent in discovering the attorney’s

ineffectiveness and then acting to seek relief.3 See Gordillo, 640 F.3d at 705; Mezo, 615 F.3d at

621.

        Here, the BIA concluded that Mendoza was not diligent before or after she learned of

Chavez’s alleged ineffectiveness. But the BIA’s reasons for concluding that Mendoza failed to

establish diligence are not supported by the record. In particular, the BIA found that Mendoza

“took no action” to inquire about her immigration status from April 2006 – December 2011.

(AR 5.) The BIA also found that “despite apparently learning of the in absentia removal order

for the first time in March 2012, she ‘did not act on her motion to reopen for nearly eight

months.’” (AR 5 (quoting IJ’s Order at 7 (Nov. 29, 2012)).) Based on these findings, the BIA

concluded that “equitable tolling of the time limit was unwarranted as [Mendoza’s] claims of due

diligence are not supported by the record.” (AR 6.)

        Both BIA findings are inconsistent with Mendoza’s declarations, which are the only

record evidence about this issue, and which the DHS does not challenge as inconsistent or




        3
           For the post-discovery period, although passage of time is not the only factor to be considered,
this court has often referenced the statutory time period to file a motion to reopen in analyzing whether a
petitioner acted diligently. See Barry, 524 F.3d at 725 (explaining that the petitioner’s claim of diligence
was “further undercut[]” because she waited to file her motion to reopen for longer than the applicable
90-day time period after learning of the need to file her motion); Scorteanu v. I.N.S., 339 F.3d 407, 414
(6th Cir. 2003) (finding a lack of diligence where, “even after having received actual notice [of the
removal order] and having retained different counsel, [the petitioner] exceeded the statutory time limit . . .
to file his motion to reopen”). A motion to reopen seeking rescission of an in-absentia removal order due
to exceptional circumstances must be brought within 180 days. 8 U.S.C. § 1229a(b)(5)(C)(i).
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No. 15-3345, Mendoza v. Lynch


unreliable.4 In particular, Mendoza’s November 1, 2012, declaration states that Chavez assured

her he would get her case transferred to Nebraska and that he had taken care of everything. After

April 2006, she continued to call Chavez. Chavez rarely answered or returned her calls, but

when they did speak several times during that period, including in December 2011, Chavez

continued to tell Mendoza that her case was taken care of and to be patient. Further, although

her November 2012 declaration states that she moved to Oakland in March 2012, Mendoza did

not state that she hired an attorney then, or that she learned of the removal order in March.

Rather, she asserted that she had “just recently” learned of the removal order and the denial of

her change-of-venue request. (AR 366.) She clarified in a subsequent declaration that she did

not hire her second attorney until May 22, 2012. She filed her first motion to reopen on

November 12, 2012, within 180 days of May 22, 2012.

        Although the BIA may reach the same conclusion based on the facts as they are stated in

Mendoza’s declarations, or find that Mendoza failed to establish exceptional circumstances or

entitlement to equitable tolling for a different reason, our review is limited to the BIA’s

articulated rationale for its decision. Daneshvar v. Ashcroft, 355 F.3d 615, 626 (6th Cir. 2004)

(“[T]he Board’s denial of relief may be affirmed only on the basis articulated in the decision and

this Court may not assume that the Board considered factors that it failed to mention in its

opinion.”). Because the BIA’s stated reasons for finding that Mendoza was not diligent in

seeking relief are not supported by the record, the BIA’s decision is without a rational

explanation and must be remanded. See Uwineza v. Holder, 781 F.3d 797, 799 (6th Cir. 2015)

(per curiam) (holding that the BIA’s denial of motion to reopen was made without a rational

        4
           The BIA cites Mendoza’s first declaration in its decision, which itself is inconsistent with the
BIA’s finding of no reasonable diligence. The BIA never cites or addresses the additional facts in
Mendoza’s second declaration about her interactions with Chavez or her learning of the removal order.
Thus, it is unclear whether the BIA even considered her second declaration, or whether it considered and
chose to disregard it.
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No. 15-3345, Mendoza v. Lynch


explanation where the reasons given were invalid); Kebe v. Gonzales, 473 F.3d 855, 857 (7th

Cir. 2007) (“Although the BIA might have offered reasons for rejecting the evidence . . . , or for

denying relief despite [this evidence], the absence of any articulated reasons in the BIA’s

decision constitutes an abuse of discretion and requires a remand.”); Modarresi v. Gonzales,

168 F. App’x 80, 82 (6th Cir. 2006) (“[T]he BIA’s decision may be reversed if it failed to

consider all relevant facts and circumstances.” (citing Daneshvar, 355 F.3d at 626)).

                                               III.

       For these reasons, we GRANT the petition in part and REMAND to the BIA for further

proceedings consistent with this opinion, and otherwise DENY the petition for review.




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