                                 RECOMMENDED FOR FULL-TEXT PUBLICATION
                                      Pursuant to Sixth Circuit Rule 206
                                              File Name: 06a0227p.06

                        UNITED STATES COURT OF APPEALS
                                         FOR THE SIXTH CIRCUIT
                                           _________________


                                                  X
                                      Petitioner, -
 MAME MBENGUE SENE,
                                                   -
                                                   -
                                                   -
                                                                           Nos. 04-3794/4115
          v.
                                                   ,
                                                    >
 ALBERTO GONZALES, Attorney General,               -
                                     Respondent. -
                                                  N

                                              Filed: July 6, 2006
             Before: SILER and CLAY, Circuit Judges; and CARR, Chief District Judge.*
                                              _________________
                                                   ORDER
                                              _________________
        The court having received a petition for rehearing en banc, and the petition having been
circulated not only to the original panel members but also to all other active judges of this court, and
less than a majority of the judges having favored the suggestion, the petition for rehearing has been
referred to the original panel.
       The panel has further reviewed the petition for rehearing and concludes that the issues raised
in the petition were fully considered upon the original submission and decision of the cases.
Accordingly, the petition is denied.




         *
          The Honorable James G. Carr, Chief United States District Judge for the Northern District of Ohio, sitting by
designation.


                                                          1
Nos. 04-3794/4115 Sene v. Gonzales                                                             Page 2


        CLAY, Circuit Judge, with whom MARTIN, DAUGHTREY, MOORE and COLE, Circuit
Judges, join, dissenting from the denial of rehearing en banc. Mame Sene petitions this Court for
rehearing of a panel decision denying her relief from an order of removal that was entered in
violation of the Due Process Clause of the Fifth Amendment. Because the panel’s decision
mischaracterizes both the law and facts applicable to Petitioner’s case, thereby working a
miscarriage of justice and creating significant, erroneous precedent, I would grant the petition for
en banc review. Accordingly, I dissent from the denial of rehearing en banc.
                                                  I.
        Petitioner is a refugee from Senegal, who seeks asylum from documented persecution.
Senegalese soldiers abducted and gang-raped Petitioner after learning that she was a member of the
Diola ethnic group. Thereafter, they mutilated her genitalia, excising her clitoris, labia minora, and
parts of her labia majora, and imprisoned her for 6 months. See Abay v. Ashcroft, 368 F.3d 634 (6th
Cir. 2005) (holding that female genital mutilation constitutes persecution). Both a medical doctor
and a psychologist from NYU’s torture center have confirmed Petitioner’s experience, stating,
among other things, that Petitioner’s “physical exam reveals the absence of the clitoris and prepuce,
total excision of the labia minora, and partial excision of the labia m[a]jora,” (J.A. at 93), and that
Petitioner “displays significant symptoms associated with Depression and Post-Traumatic Stress
Disorder. These findings are consistent with the severe physical and emotional trauma that she
reports experiencing in the past,” (J.A. at 109). Notably, Petitioner’s mother, who was also
kidnaped and imprisoned by Senegalese soldiers, was granted asylum.
        Nonetheless, an immigration judge (“IJ”) denied Petitioner’s application for asylum because,
due to ineffective assistance of counsel, Petitioner failed to submit corroborating evidence of her
persecution at her merits hearing. Following the IJ’s advice, Petitioner obtained documentation and
moved to reopen her case. The Board of Immigration Appeals (“BIA”) denied Petitioner’s motion
to reopen, however, because Petitioner, filing pro se, after her counsel unexpectedly withdrew, failed
to allege ineffective assistance of counsel in her motion. Consequently, the BIA determined that
Petitioner’s corroborating evidence was not previously unavailable within the meaning of 8 C.F.R.
§ 1003.2(c)(1), and therefore, not a basis for reopening her application. After obtaining her current
counsel, Petitioner filed a second motion to reopen, in which she alleged ineffective assistance of
counsel. The BIA denied Petitioner’s second motion, finding that the so-called “number-bar”
contained in 8 C.F.R. § 1003.2(c)(2) precluded Petitioner from filing a second motion to reopen.
Petitioner thereafter appealed the BIA’s denial of both motions to reopen.
        A panel of this Court denied the petition for review, holding that the BIA did not abuse its
discretion in denying Petitioner’s second motion to reopen because Petitioner had failed to establish
ineffective assistance of counsel. The panel concluded that Petitioner had not established ineffective
assistance of counsel because Petitioner’s failure to submit corroborating evidence could not be
attributed to her attorney’s conduct. The panel reasoned that Petitioner’s attorney urged her to
obtain medical documentation and even scheduled a doctor’s appointment for Petitioner. The panel
completely failed to recognize, however, that Petitioner’s attorney did so only after the IJ had
already denied Petitioner’s asylum application. Inasmuch as new evidence is not admissible on
appeal or on a motion to reopen, counsel’s failure to so advise Petitioner before the merits hearing
did cause Petitioner prejudice by effectively denying her the opportunity to fairly present her case.
 Furthermore, neither the previously unavailable evidence rule nor the number-bar may be used to
deny Petitioner this opportunity because Petitioner’s right to present her case arises from the Fifth
Amendment to the United States Constitution and no administrative regulation may be applied
inconsistently with the Constitution. Consequently, the panel decision is contrary to law and should
be reversed.
Nos. 04-3794/4115 Sene v. Gonzales                                                             Page 3


        Although unpublished, the panel decision creates significant, erroneous and pernicious
precedent. The majority’s holding that Petitioner did not receive ineffective assistance of counsel
despite her counsel’s failure to submit medical documentation to the IJ, can and will be used in
future cases to deny similarly situated petitioners relief. Although the panel glosses over the fact
that Petitioner’s counsel recommended submitting corroborating medical documents only after the
IJ denied Petitioner’s claim on the merits, my panel dissent brings this omission to light. Put
succinctly, the panel’s decision stands for the proposition that counsel is not responsible for failure
to submit corroborating documents to an IJ, so long as counsel at some point attempts to submit such
documents to the BIA. This is patently incorrect and should be reversed so as to prevent harm to
future victims of ineffective assistance of counsel.
        Importantly, the panel decision’s pernicious precedential effect has already been
demonstrated in another context by the Third Circuit’s recent citation to it in a published case.
Luntungan v. Att’y Gen. of the United States, 449 F.3d 551, 557 n.15 (3d Cir. 2006). The Third
Circuit construed the panel opinion as casting doubt on the waivability of the number-bar, even
where equity warrants waiver. Id. This case presents an excellent opportunity for this Court to
refute the Third Circuit’s interpretation of this Court’s position, as well as consider this important
issue of first impression.
                                                  II.
         This Court reviews the BIA’s denial of a motion to reopen for abuse of discretion. Denko
v. INS, 351 F.3d 717, 723 (6th Cir. 2003). The BIA necessarily abuses its discretion when its denial
of a motion to reopen deprives a petitioner of his or her Fifth Amendment right to a full and fair
opportunity to present a case. See Daneshvar v. Ashcroft, 355 F.3d 615, 625-26 (6th Cir. 2004)
(holding that the BIA abuses its discretion in rendering a decision that is contrary to law). Whether
a BIA’s decision deprives a petitioner of his or her Fifth Amendment due process rights is an issue
that this Court determines de novo. Denko, 351 F.3d at 726; see also Ahmed v. Gonzales, 398 F.3d
722, 725(6th Cir. 2005); Allabani v. Gonzales, 402 F.3d 668, 676 (6th Cir. 2005).
                                                 III.
        In the instant case, the BIA’s denial of Petitioner’s second motion to reopen deprived
Petitioner of her Fifth Amendment right to a full and fair opportunity to present her case. The BIA
presented two grounds for denying Petitioner relief: (1) the previously unavailable evidence rule;
and (2) the number-bar on motions to reopen. Inasmuch as neither rule may be used to prevent a
petitioner from fully and fairly presenting her case, they do not constitute a proper basis for the
BIA’s decision.
A.     Ineffective assistance of counsel prevented Petitioner from fairly presenting her case
       in violation of the Due Process Clause of the Fifth Amendment.
        Petitioner has received ineffective assistance of counsel in violation of the Due Process
Clause of the Fifth Amendment because counsel’s errors result in a proceeding that is so
fundamentally unfair that Petitioner was prevented from reasonably presenting her case. Denko, 351
F.3d at 724. To show fundamental unfairness, a party must demonstrate that: (1) counsel erred, or
competent counsel would have acted otherwise; and (2) but for counsel’s errors the party would have
received asylum. Id.
               1.      Attorney Error
        It is clear that counsel’s failure to submit corroborating medical evidence constituted
representation below the level of reasonably competent counsel and was an error. The BIA has
stated in numerous cases that an applicant’s failure to provide corroborating evidence of torture,
Nos. 04-3794/4115 Sene v. Gonzales                                                             Page 4


where reasonably available, is fatal to an asylum claim. Matter of M-D, 21 I. & N. Dec. 1180, 1181
(BIA 1998); Matter of S-M-J, 21 I. & N. Dec. 724, 725 (BIA 1997); see also Dorosh v. Aschroft,
398 F.3d 379, 382 (6th Cir. 2004) (upholding the BIA’s rule requiring corroborating evidence). In
particular, the BIA has stated that an applicant should provide documentary support for material
facts which are central to [the applicant’s] claim and easily subject to verification, such as . . .
documentation of medical treatment.” Matter of S-M-J, 21 I. & N. Dec. at 725 (emphasis added).
Petitioner’s counsel had an obligation to be aware of this well-known rule. Additionally, had
Petitioner’s attorney taken the time to speak with her, he would have realized that Petitioner was
receiving medical treatment and could easily obtain a report. Thus, Petitioner’s attorney erred in
failing to obtain medical reports from Petitioner and submit them to the IJ.
               2.      Prejudice
        Similarly, it is clear that the failure of Petitioner’s counsel to submit medical reports
prejudiced Petitioner’s case. According to the IJ at Petitioner’s hearing, “[t]his case could be pretty
simple if a doctor confirmed what she said. ” (J.A. at 191.) Dr. Deborah Dyson, who Petitioner
began seeing before the merits hearing, did confirm a substantial amount of what Petitioner claimed.
 Dr. Dyson confirmed that Petitioner’s genitalia had been mutilated. “Her physical exam reveals
the absence of the clitoris and prepuce, total excision of the labia minora and partial excision of the
labia mojora [sic].” (J.A. at 93.) Additionally, Petitioner’s psychologist, Adeyinka M. Akinsulure-
Smith, wrote “in my clinical and professional opinion, [Petitioner] displays significant symptoms
associated with Depression and Post-Traumatic Stress Disorder. These findings are consistent with
the severe physical and emotional trauma that she reports experiencing in the past.” (J.A. at 109.)
Thus, it is clear that with advice from counsel, Petitioner could have prevailed on her asylum claim
on the merits. Abay, 368 F.3d at 634 (holding that female genital mutilation is a form of
persecution).
        The panel attempts to undercut the force of Petitioner’s evidence by relying on the IJ’s
statements that he believed a medical report was necessary to show that Petitioner’s injuries were
“crudely done” by a “completely untrained and uncaring person,” thereby implying that the IJ would
have denied Petitioner’s asylum claim even with the medical reports, on the ground that the medical
reports were insufficiently corroborative. Although I find it unlikely that the IJ would have denied
Petitioner’s claim, I find it important to make clear that the proper inquiry on prejudice is not
whether the IJ would have denied Petitioner’s claim in light of the medical reports but whether
Petitioner was legally entitled to relief on her claim given the medical reports. See Sako v. Gonzales,
434 F.3d 857, 864 (6th Cir. 2006) (“[The petitioner] must establish that, but for the ineffective
assistance of counsel, he would have been entitled to continue residing in the United States.”). In
this case, had the IJ denied Petitioner’s claim on the merits even after considering Petitioner’s
medical reports, the BIA and this Court would have been legally obligated to reverse the IJ’s
decision. First, the IJ does not have the authority to require a petitioner to submit corroborating
evidence unless such evidence is reasonably available. See Dorosh, 398 F.3d at 382. As Dr.
Dyson’s report makes clear, evidence of who mutilated Petitioner and how she was mutilated is not
reasonably available because the events in question occurred too long ago. Second, the IJ is not a
medical expert and does not have the knowledge or authority to assume that because there was no
scarring that a surgeon, and not soldiers, mutilated Petitioner’s genitalia. See Sylla v. I.N.S., 388
F.3d 924, 928 (6th Cir. 2004) (holding that the IJ could not speculate on typical prison conditions
in Guinea but needed to base his credibility determinations on evidence in the actual record); see
also Sulollari v. Gonzales, No. 04-4237, 2005 WL 3275500, at *4 (6th Cir. Dec. 5, 2005) (citing
Sylla, 388 F.3d at 928). If the IJ made an adverse credibility determination on either basis, both the
BIA and this Court would be required to reverse the IJ’s decision. Sylla, 388 F.3d at 928.
        Furthermore, the panel inappropriately and offensively implies that Petitioner somehow did
not suffer persecution because her genitalia healed without scarring. Sene v. Gonzales, Nos. 04-
Nos. 04-3794/4115 Sene v. Gonzales                                                              Page 5


3794, 04-4115, 2006 WL 994173 at *2 (6th Cir. April 14, 2006). (“Importantly, Dr. Dyson states
that the ‘external genitalia is totally healed without scarring.”) Female genital mutilation constitutes
persecution in this Circuit regardless of whether performed by a surgeon or a soldier. See Abay v.
Ashcroft, 368 F.3d at 634. Despite the fact that Petitioner has no scars, she may never be able to
engage in satisfactory sexual intercourse and is at risk for serious and potentially life threatening
gynecological complications. See id. at 638. Excising a woman’s sex organs is a form degradation
that is totally unacceptable in this country or any civilized country. See id. at 638-39 (“The practice
of FGM has been internationally recognized as a violation of women’s and female children’s
rights. . . . Congress criminalized the practice of female genital mutilation under federal law.”)
(internal citations omitted). Because Petitioner has undeniably suffered a severe form of persecution
and there is absolutely no evidence in the record suggesting that she consented to the persecution,
Petitioner has met the burden of proving a well-founded fear of future persecution and would prevail
on the merits of her asylum claim. Id. (holding that evidence of past persecution entitles a petitioner
to a presumption of a well-founded fear of persecution and refugee status).
        Nonetheless, the panel manages to conclude that Petitioner has not established ineffective
assistance of counsel. While conceding that the failure to submit documents to the IJ created a
“strong likelihood” of prejudice to Petitioner’s case, the panel reasons that counsel did not cause this
prejudice. In its efforts to support its reasoning, however, the panel is forced to obscure the facts
in the record. According to the panel’s version of events, counsel did not cause the prejudice
Petitioner suffered because counsel recommended to Petitioner that she submit medical documents.
The panel, however, misleadingly omits the fact that counsel made this recommendation after the
IJ denied Petitioner’s asylum application on the merits, stating only that counsel made the
recommendation “after the IJ stressed the importance of such information.” Sene, 2006 WL 994173
at *3. By this time, however, Petitioner had already suffered the requisite prejudice because her
claim had been denied on the merits. Counsel’s advice could not remedy the prejudice she suffered
from the denial. A direct appeal, as the record demonstrates, is useless where Petitioner does not
submit corroborating evidence to the IJ. An IJ is legally justified in rejecting a petitioner’s claim
where the petitioner fails to present corroborating evidence, Dorosh, 398 F.3d at 382, and the BIA
will not consider the new evidence on appeal. See, e.g., In re Federenko, 19 I. & N. Dec. 57, 76
(BIA 1984) (holding that the BIA will not consider evidence not submitted to the IJ). Thus, a
motion to reopen was Petitioner’s only alternative and that is the motion before us today.
B.     The previously unavailable evidence rule was an improper basis for denying
       Petitioner’s motion.
        Because Petitioner received ineffective assistance of counsel, the previously unavailable
evidence rule was an improper basis on which to deny her motion to reopen. Section 1003.2(c)(1)
prohibits the BIA from granting a motion to reopen “unless it appears . . . that the evidence sought
to be offered is material and was not available and could not have been discovered or presented at
the former hearing.” 8 C.F.R. § 1003.2(c)(1). Where a petitioner receives ineffective assistance of
counsel, such assistance is deemed to have rendered the petitioner’s evidence previously unavailable
within the meaning of § 1003.2(c)(1). See Orehhova v. Gonzales, 417 F.3d 48, 52 (1st Cir. 2005).
Counsel’s incompetent performance effectively results in a petitioner’s inability to obtain and or
present relevant evidence. Perhaps for this very reason, the BIA does not apply the previously
unavailable evidence requirement of § 1003.2(c)(1) to ineffective assistance of counsel claims. See
Osei v. I.N.S., 305 F.3d 1205, 1208-09 (10th Cir. 2002) (noting that the BIA does not apply
§ 1003.2(c)(1) to motions to reopen based on ineffective assistance of counsel claims).
        Moreover, reading § 1003.2(c)(1)’s previously unavailable evidence requirement to bar
motions to reopen based on ineffective assistance of counsel claims would render § 1003.2(c)(1)
unconstitutional. The Due Process Clause of the Fifth Amendment grants aliens the right to a full
and fair hearing in deportation proceedings. Denko, 351 F.3d at 724. Where a petitioner is deprived
Nos. 04-3794/4115 Sene v. Gonzales                                                             Page 6


of a full and fair hearing due to ineffective assistance of counsel, the Fifth Amendment mandates
that the petitioner be granted a new hearing. Id. Where the federal Constitution requires that a
petitioner be afforded a new hearing, an administrative regulation cannot be used to deny the
petitioner that hearing. Any regulation that so conflicted with the Constitution would be
unconstitutional and thus unenforceable. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803)
(“Certainly all those who have framed written constitutions contemplate them as forming the
fundamental and paramount law of the nation, and consequently the theory of every such
government must be, that an act of the legislature, repugnant to the constitution, is void.”).
Consequently, the BIA’s determination that Petitioner failed to present previously unavailable
evidence is contrary to law and an abuse of discretion.
C.     The number- bar was an improper basis for denying Petitioner’s motion.
        Similarly, the BIA’s failure to waive the number-bar as applied to Petitioner constitutes an
abuse of discretion. Both the BIA and this Court have the authority to waive the number-bar on
motions to reopen, Rodrigues-Lariz v. I.N.S, 282 F.3d 1218, 1224 (9th Cir. 2002), and must do so
where application of the number-bar would deprive a petitioner of his or her Fifth Amendment due
process rights. In the instant case, failure to waive the number-bar deprived Petitioner of her due
process rights by effectively preventing her from presenting her application for asylum. See
Allabani, 402 F.3d at 676 (holding that the Fifth Amendment guarantees asylum applicants a “full
and fair hearing”); Denko, 351 F.3d at 723 (holding that the Fifth Amendment guarantees petitioners
the right to “reasonably present[]” his or her case). As discussed previously, Petitioner was
deprived of a fair hearing before the IJ due to her counsel’s ineffective assistance. See supra,
Section A. Thus, the Fifth Amendment requires that Petitioner be given another opportunity to
present her case.
        While a petitioner’s first motion to reopen would normally provide such an opportunity, in
this case, Petitioner was deprived of the effective use of her first motion to reopen by yet another
instance of her counsel’s constitutionally ineffective assistance. See Iturribarria v. INS, 321 F.3d
889, 897-98 (9th Cir. 2003) (reiterating the position that an attorney’s ineffective assistance of
counsel is grounds for waiving number-bar). Despite promising Petitioner that he would pursue a
motion to reopen on her behalf, counsel withdrew from Petitioner’s representation after the end of
the appeals process, leaving Petitioner to file her first motion to reopen without the assistance of an
attorney. Moreover, counsel withdrew from representation without first informing Petitioner of the
proper deadline for her motion to reopen, leading Petitioner to believe that she did not have time to
obtain other counsel prior to filing her motion. Professional norms in both New York
(where counsel resides) and Tennessee (where Petitioner resides) require attorneys to
“give[] reasonable notice [of withdrawal] to the client so as to allow time for the
employment of other counsel.” Tennessee Rules of Professional Conduct Rule
1.16(d)(1), available at, http://www.tba.org.ethics2002.html             (last visited June 26,
2006); New York Rules of Professional Conduct, DR 2-110 (B), available at,
http://www.nysba.org/Content/Navigation/Menu/Attorney_Resources/Lawyers/Code_of
_Professional _Responsibility/LawyersCodeofProfessionalResponsibility.pdf (last visited June 26,
2006). Accordingly, counsel’s behavior clearly fell below professional standards of conduct and
was in error.
        Counsel’s untimely withdrawal prejudiced Petitioner by causing Petitioner to “waste” her
first motion to reopen. See Rodrigues-Lariz v. I.N.S, 282 F.3d at 1224 . If Petitioner had obtained
the assistance of a trained and competent professional, to which she has a legal right, 8 U.S.C.
§ 1362, Petitioner would have known to allege ineffective assistance of counsel, and thus would
have prevailed on the motion. The fact that Petitioner would have obtained counsel if she had been
given the opportunity is evidenced by her attempt to use her former counsel for the motion to reopen
and her acquisition of new counsel as soon as practicable after former counsel withdrew. That
Nos. 04-3794/4115 Sene v. Gonzales                                                           Page 7


competent counsel would have enabled Petitioner to prevail on her first motion to reopen should be
fairly obvious at this point inasmuch as Petitioner’s former counsel was patently ineffective for
failing to present corroborating medical evidence at Petitioner’s merits hearing. See supra, Section
A. Consequently, Petitioner’s first motion to reopen did not provide Petitioner a reasonable or fair
opportunity to present her case, and the Fifth Amendment requires that she now be given such an
opportunity. See Allabani, 402 F.3d at 676; Denko, 351 F.3d at 723.
                                             IV.
                                         CONCLUSION
       The Fifth Amendment guarantees Petitioner the right to present her case. Petitioner has not
yet had such an opportunity, and no administrative regulation should be employed in a manner that
would deprive her of this opportunity. Therefore, I would grant the petition for rehearing en banc
and reverse the panel’s decision denying Petitioner relief.


                                              ENTERED BY ORDER OF THE COURT


                                                    /s/ Leonard Green
                                              __________________________________
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