                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 March 19, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                              FOR THE TENTH CIRCUIT


    CONSTANTINE TANJANG TAKWI,

                Petitioner,

    v.                                                  No. 09-9534
                                                    (Petition for Review)
    ERIC H. HOLDER, JR.,
    United States Attorney General,

                Respondent.


                              ORDER AND JUDGMENT *


Before HARTZ, McKAY, and ANDERSON, Circuit Judges.



         Constantine Tanjang Takwi, a native and citizen of Cameroon representing

himself before this court, petitions for review of the Board of Immigration

Appeals’ (BIA) denial of his second motion to reopen his immigration

proceedings. Exercising jurisdiction under 8 U.S.C. § 1252, we deny the petition

for review.


*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
                                    Background

      Mr. Takwi was ordered removed in 2002, after he represented himself at his

hearing because his counsel failed to appear. In November 2002, represented by a

new attorney, he filed a motion to reopen, arguing his prior counsel was

ineffective because he abandoned Mr. Takwi. The BIA denied the motion in

January 2003 because Mr. Takwi failed to show he was prejudiced by his

attorney’s performance. The second attorney subsequently withdrew the petition

for review before this court. On June 12, 2008, represented by a third attorney,

Mr. Takwi filed his second motion to reopen, which is the subject of this appeal.

The motion argued that both his first and second attorneys were ineffective, and

that he was entitled to adjust his status based on his marriage to a United States

citizen. On January 9, 2009, he supplemented his motion, offering additional

documents and arguing that conditions in Cameroon had changed for the worse.

On January 13, 2009, the BIA denied the motion to reopen without mentioning

the supplemental materials. Mr. Takwi moved to reconsider, and the BIA did so.

It vacated the January 13 decision and further addressed the motion to reopen in

light of the supplemental materials. The result did not change, however, as the

BIA again declined to reopen the case.

      The BIA noted that the motion was a second motion, exceeding the limit of

one motion to reopen, and that it was untimely by a matter of years. As grounds

for excusing these deficiencies, the motion complained of ineffective assistance

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of counsel. See Riley v. INS, 310 F.3d 1253, 1258 (10th Cir. 2002) (concluding

that ineffective assistance may warrant equitable tolling). The BIA held that the

issue of the first attorney’s performance had been decided in 2003 and was final.

Further, citing In re Compean, 24 I. & N. Dec. 710 (A.G. 2009), vacated, 25 I. &

N. Dec. 1 (A.G. 2009), the BIA concluded that Mr. Takwi had not shown

prejudice or due diligence with regard to his issues with his second attorney.

      The BIA also considered whether to apply the exception that allows

reopening to file applications for asylum, restriction on removal, and CAT relief

based on changed country conditions in the country of nationality. See 8 U.S.C.

§ 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii). It concluded that the majority

of Mr. Takwi’s evidentiary submissions were not new and could have been

presented earlier, and it identified factors undermining the materials’ authenticity

and reliability. Finally, it concluded that the supplemental reports did not show

changed country conditions. The BIA therefore denied the motion to reopen.

                                      Analysis

      Our review of the denial of a motion to reopen is only for abuse of

discretion. See Infanzon v. Ashcroft, 386 F.3d 1359, 1362 (10th Cir. 2004). “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.” Id. (quotation omitted). There

is no abuse of discretion when, “although the BIA’s decision is succinct, its

                                         -3-
rationale is clear, there is no departure from established policies, and its

statements are a correct interpretation of the law.” Id.

      Noting Compean was vacated, Mr. Takwi argues the BIA applied incorrect

law in requiring him to show prejudice and due diligence. But in vacating

Compean, the Attorney General directed the BIA to “apply the pre-Compean

standards to all pending and future motions to reopen based on ineffective

assistance of counsel.” 25 I. & N. Dec. at 3. Both prejudice and due diligence

are integral parts of pre-Compean precedent. See In re Lozada, 19 I. & N.

Dec. 637, 638 (BIA 1988) (requiring a showing of prejudice); Riley, 310 F.3d at

1258 (noting that in considering equitable tolling, the BIA must review the

movant’s diligence); Akinwunmi v. INS, 194 F.3d 1340, 1341 n.2 (10th Cir. 1999)

(per curiam) (holding “an alien must show that his counsel’s ineffective

assistance so prejudiced him that the proceeding was fundamentally unfair”).

Thus, the BIA’s citation to Compean does not require us to grant the petition for

review.

      Further, we need not address Mr. Takwi’s argument concerning the proper

measure for establishing prejudice in this circuit, because he did not establish his

diligence in pursuing his issues regarding his second attorney. He argues he only

learned of his second counsel’s errors in 2008, but he offers no explanation why

he did not seek information about his immigration proceedings between 2002 and

2008. And given he is unable to attack his second counsel’s performance and

                                          -4-
thereby undermine the 2003 determination regarding his first counsel, the 2003

decision stands.

      The BIA also considered the exception that allows reopening based on

changed country conditions. Mr. Takwi argues the BIA did not adequately

consider his supplemental evidence, particularly the State Department and

Amnesty International reports. To the contrary, the BIA discussed the

supplemental documents and gave rational reasons for rejecting them as grounds

for reopening the proceedings. At bottom, the BIA was not persuaded to revisit

the agency’s prior determination that Mr. Takwi had failed to show he was

member of the relevant political groups. Under these circumstances, we cannot

conclude the refusal to reopen was an abuse of discretion even if the supplemental

reports showed worsening conditions for members of those groups in Cameroon. 1

      Mr. Takwi’s out-of-time reply brief is accepted for filing. The petition for

review is DENIED.


                                                   Entered for the Court



                                                   Monroe G. McKay
                                                   Circuit Judge


1
      Mr. Takwi’s opening brief does not challenge the BIA’s rejection of his
argument that he was entitled to adjustment of status based on his marriage to a
United States citizen, and thus the issue is waived. See Stump v. Gates, 211 F.3d
527, 533 (10th Cir. 2000).

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