                                                                      [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS
                                                                              FILED
                            FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
                                                                      ELEVENTH CIRCUIT
                                                                         FEB 09, 2010
                                        No. 08-16469                      JOHN LEY
                                                                        ACTING CLERK


                                Agency No. A097-957-354

MEIMEI XUE,

                                                                                    Petitioner,

                                            versus

U.S. ATTORNEY GENERAL,

                                                                                  Respondent.



                        Petition for Review of a Decision of the
                             Board of Immigration Appeals


                                     (February 9, 2010)

Before WILSON and COX, Circuit Judges, and RESTANI,* Judge.

PER CURIAM:



       *
         Honorable Jane A. Restani, Chief Judge, United States Court of International Trade,
sitting by designation.
      Meimei Xue, a citizen of the People’s Republic of China, petitions for

review of the Board of Immigration Appeals’ (“BIA”) denial of her motion to

reopen based on ineffective assistance of counsel. Because the BIA failed to

provide sufficient reasoning for a meaningful review, we GRANT the petition and

REMAND to the BIA with instructions to reconsider Xue’s motion to reopen

proceedings as to her claim that ineffective assistance of counsel precluded her

from establishing a well-founded fear of future persecution.

      Xue entered the United States on December 11, 2004. On December 14,

2004, Xue was issued a Notice to Appear charging her with removability under

Immigration and Nationality Act (“INA”) § 212(a)(7)(A)(i)(I), 8 U.S.C.

§ 1182(a)(7)(A)(i)(I), because she did not possess valid entry documents. In April

2005, Xue appeared before an Immigration Judge (“IJ”) and conceded her

removability. Xue’s first attorney, Liu Yu, filed an asylum application on the

basis of political opinion and membership in a particular social group.

      In September 2005, the IJ scheduled the merits hearing for May 2006, and

ordered any original documents in support of Xue’s asylum claim to be filed

before December 2, 2005. In May 2006, just days before the hearing, Xue’s new




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attorney, Yan Wang, filed the supporting documents1 and a new asylum

application signed by Xue in September 2005, which added the basis of religious

persecution.2

       On May 15, 2006, the IJ denied Xue’s applications for asylum under section

208 of the INA, withholding of removal under section 241(b)(3) of the INA, and

treatment under the United Nations Convention Against Torture. The IJ afforded

the supporting documents no weight due to the untimely filing and the resulting

inability of the Government to authenticate them. Further, the IJ made an adverse

credibility determination because Xue’s testimony was inconsistent, Xue did not

raise the issue of religious persecution during her initial interviews, and Xue did

not live at the address she had indicated in a prior affidavit.

       In March 2008, the BIA dismissed Xue’s appeal and affirmed the IJ’s

adverse credibility finding. In April 2008, Xue timely filed a petition for review

of the BIA’s decision. In June 2008, Xue filed a timely motion to reopen

       1
         This filing date is not only contrary to the IJ’s September 2005 order, but it is also in
violation of the Miami Immigration Court’s local rules. The documents Xue sought to introduce
for her merits hearing included, inter alia, a baptism certificate, six photos at a church gathering,
and Nancy Wu’s affidavit in support of Xue.
       2
          Xue alleges that she and her family were arrested while attending church at her great-
uncle’s house, interrogated, beaten and detained for ten days until a fine of 10,000 RMB was
paid. Upon her release, Xue learned that the police informed her school of her religious activity
and consequently the school revoked her post-graduation job offer. Xue was baptized after her
arrival in the United States. Xue is afraid that if she returns to China she will be imprisoned,
unable to find work, and not allowed to attend church.

                                                  3
proceedings based on ineffective assistance of former counsel. Later that month,

Xue filed a motion to withdraw her appeal, which this Court granted with

prejudice in July 2008. In October 2008, the BIA denied Xue’s motion to reopen,

and Xue timely petitioned for review of this denial.

       We have jurisdiction pursuant to section 242 of the INA. 8 U.S.C. § 1252.

“This Court reviews the BIA’s denial of a motion to reopen removal proceedings

for abuse of discretion.” Mejia Rodriguez v. Reno, 178 F.3d 1139, 1145 (11th

Cir. 1999) (citation omitted). When a BIA decision “is devoid of any reasoning,

or contains only summary or conclusory statements,” the BIA has abused its

discretion. Gonzalez-Mejia v. U.S. Att’y Gen. (No. 05-15906, May 30, 2006, 11th

Cir.) (unpublished opinion) (per curiam) (citing Mickeviciute v. INS, 327 F.3d

1159, 1162 (10th Cir. 2003)) (internal quotations marks omitted). In such an

instance, “the proper course . . . is to remand to the agency for additional

investigation or explanation.” INS v. Orlando Ventura, 537 U.S. 12, 16 (2002)

(internal quotation marks and citation omitted).

      In denying Xue’s motion to reopen based on ineffective assistance of

counsel, the BIA’s entire analysis consisted of the following:

      Upon careful review of the record, we conclude that the respondent
      has failed to show any evidence of prejudice. In this case, the
      Immigration Judge’s denial of relief was based principally on his

                                          4
         finding that the respondent lacked credibility regarding her claim that
         she was persecuted in China on account of her religious activities, a
         finding which is not meaningfully addressed in the motion or
         supporting documentation. Given the Immigration Judge’s finding in
         this regard, we find no basis to conclude that the outcome of the
         proceedings would have been different but for any errors the
         respondent attributes to her former counsel.

(R.E. 9.) We find that the BIA abused its discretion because it failed to consider,

and certainly did not discuss, the evidence supporting Xue’s claim of ineffective

assistance of counsel with respect to her claim of a well-founded fear of future

persecution. Further, judgments as to an applicant’s credibility must rest on

consideration of all of the evidence. See Forgue v. U.S. Att’y Gen., 401 F.3d

1282, 1287 (11th Cir. 2005). Whether late-submitted evidence is considered

ultimately depends on the decision as to the ineffective assistance of counsel

claim.3 Therefore, declining to consider the ineffective assistance of counsel claim

based solely on the earlier adverse credibility finding places the cart before the

horse.

         Accordingly, we GRANT the petition and REMAND to the BIA for

         3
          The Government argues that there is no constitutional right to effective assistance of
counsel in removal proceedings, citing Matter of Compean, Bangaly & J-E-C-, 24 I. & N. Dec.
710 (A.G. Jan. 7, 2009). The Attorney General vacated that decision in Matter of Compean,
Bangaly & J-E-C-, 25 I. & N. Dec. 1 (A.G. June 3, 2009). “It is well established in this Circuit
that an alien in civil deportation proceedings . . . has the constitutional right under the Fifth
Amendment Due Process Clause right to a fundamentally fair hearing to effective assistance of
counsel where counsel has been obtained.” Dakane v. U.S. Att’y Gen., 399 F.3d 1269, 1273
(11th Cir. 2004) (per curiam) (citation omitted).

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reconsideration of its decision to deny Xue’s motion to reopen proceedings.




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