                                                              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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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 BIA

for further proceedings consistent with this order and judgment.

                                  BACKGROUND

      Ms. Mukhia is a native and citizen of Nepal. After legally entering the United

States with her adult son in November 2004, they overstayed their six-month

authorized period. Ms. Mukhia’s husband had legally entered the United States in

2001, and he also remained in the country illegally. In August 2005, Ms. Mukhia

retained Ravi Kanwal as her counsel, and on August 30 she filed an application

seeking asylum for herself and her husband.1 After an asylum officer found aspects

of her application not credible, the Department of Homeland Security (“DHS”)

served Ms. Mukhia with a Notice to Appear on May 2, 2006, charging her as

removable pursuant to 8 U.S.C. § 1227(a)(1)(B). She appeared before an

immigration judge (“IJ”) in consolidated removal proceedings with her husband and

son. They conceded removability and sought relief in the form of asylum,

withholding of removal, and protection from removal under the Convention Against

Torture.

      Ms. Mukhia claimed a fear of persecution and torture based on her political

opinions and her membership in particular social groups. At the IJ hearing, she

testified 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 asserted
1
      Ms. Mukhia’s son filed a separate asylum application.


                                        -2-
that the Maoists were interested in her and her family members because they spoke

out against the Maoist party and because of their membership in anti-Maoist

organizations. She indicated that she was a member of both the Nepali Congress

Party and a related teachers’ organization.

      The IJ found that Ms. Mukhia had not presented any evidence corroborating

her testimony. In denying her applications for relief, the IJ stated that her “testimony

was not sufficiently detailed, consistent, or believable to provide a plausible and

coherent account for the basis for her fears and thus cannot suffice to establish her

eligibility for asylum without corroborating evidence.” Admin. R. at 225. The IJ

ordered Ms. Mukhia, her husband, and her son removed to Nepal. They appealed the

IJ’s removal order to the BIA, alternatively seeking a remand to the IJ for

consideration of additional evidence. That evidence included a letter from the school

where Ms. Mukhia had taught in Nepal and a statement from a Nepali police

inspector 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 that

Ms. Mukhia “failed to provide sufficient evidence to carry her burden of proof and

persuasion for eligibility for [relief].” Id. at 192. The BIA also denied the motion to

remand 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. He

submitted an affidavit from her explaining why she failed to present corroborating

evidence at the IJ hearing, and he attached the originals of the documents that she had

filed with her motion to remand. The BIA denied the motion to reopen, finding that

Ms. Mukhia did not explain how the letter from the school in Nepal came into her

possession 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 Nepali

police officers living in the United States and by way of a bribe.

       DHS removed Ms. Mukhia’s husband to Nepal on August 12, 2010. After

DHS 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 two

grounds for her late and successive motion to reopen: ineffective assistance of her

former counsel, Mr. Kanwal, and a change of country conditions in Nepal.

       As to Mr. Kanwal’s ineffective assistance, Ms. Mukhia asserted that he failed

to respond to her repeated inquiries about the status of her case; he did not advise her

that her appeal had been dismissed by the BIA; he filed a motion to reopen without

her knowledge and failed to inform her that it was denied; and he did not give her

timely and appropriate legal advice about the documentary evidence required for her

case, 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 asserted

that she had paid a bribe to obtain the statement from the Nepali police. She

maintained that, as a result of Mr. Kanwal’s ineffective assistance, her asylum claim

was denied based on a lack of corroborating evidence. Ms. Mukhia also submitted

evidence that in July 2009 Mr. Kanwal had been suspended for two years from

practicing before immigration tribunals for engaging in unethical and unprofessional

conduct, working as an attorney in Colorado without authorization, failing to comply

with his non-immigrant visitor visa, and remaining in the United States illegally since

1995. The evidence indicated that, on similar grounds, Mr. Kanwal had also been

suspended from the practice of law by the Colorado Supreme Court.

      Regarding her claim of changed country conditions in Nepal, Ms. Mukhia

asserted that her new evidence demonstrated that the Maoists had gained political

control in Nepal and were committing atrocities, intimidation, torture, and killings.

She sought to file a successive asylum application based on these alleged changes in

country conditions in Nepal.

      The BIA first found that Ms. Mukhia’s motion to reconsider was untimely and

that she presented no exceptional situation warranting sua sponte reconsideration.2 It

also found that her motion to reopen was both untimely and number-barred. The


2
       Ms. Mukhia does not challenge the BIA’s denial of her motion for
reconsideration in either of her appeal briefs. She has therefore waived appellate
consideration 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 a

basis 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 sufficient

competence. But the BIA concluded that she failed to show prejudice. Finally, as to

her claim of a change in country conditions, the Board found that she failed to show

changed circumstances that were material to her claims for relief. The BIA therefore

denied her motion to reopen as untimely and number-barred. Ms. Mukhia filed a

timely 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 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). In this case, we cannot perform a

meaningful review of the Board’s decision, which fails to sufficiently articulate its

reasoning. See Mickeviciute v. INS, 327 F.3d 1159, 1162 (10th Cir. 2003). We

therefore remand to the BIA for further explanation of the bases for its denial of

Ms. Mukhia’s motion to reopen.




                                          -6-
                          Ineffective Assistance of Counsel

      In general, an alien may file only one motion to reopen, which must be filed

within 90 days of the final administrative decision. See 8 C.F.R. § 1003.2(c)(2). But

the time limitation on a motion to reopen may be equitably tolled based on a claim of

ineffective 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 to

a 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 deportation

proceedings,” an alien “can state a Fifth Amendment violation if he proves that

retained counsel was ineffective and, as a result, the petitioner was denied a

fundamentally fair proceeding.” Id.

      To succeed on a claim of ineffective assistance of counsel, an alien must show

that she was prejudiced by her counsel’s ineffective performance. See Ochieng v.

Mukasey, 520 F.3d 1110, 1115 (10th Cir. 2008) (rejecting ineffective-assistance

claim 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’s


3
       We noted in Riley that other circuits have held that the numerical limitation on
motions to reopen can be “equitably tolled” based on a claim of ineffective assistance
of 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 motion
to reopen was barred solely because it was her second such motion, nor did the BIA
deny her motion on that basis. Therefore, we need not resolve in this case whether a
claim of ineffective assistance of counsel provides an exception to the numerical
limitation on motions to reopen.


                                          -7-
performance”). An alien shows prejudice by demonstrating that, but for her

counsel’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) (rejecting

due-process claim in removal proceedings based on alien’s failure to show that

additional 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, but

for the ineffective assistance of counsel, he would have been entitled to [relief]”).

Here, Ms. Mukhia contended that Mr. Kanwal failed to advise her regarding the

documents necessary to support her asylum claim or the authentication necessary to

make her evidence admissible, and as a result, her asylum application was denied

based on a lack of corroborating evidence.

      The BIA concluded that Ms. Mukhia failed to establish prejudice as a result of

her former counsel’s ineffective assistance. In support of that determination, the

Board simply reiterated its previous findings that the corroborating documents

submitted by her former—ineffective—counsel were not authenticated and failed to

establish chain of custody or previous unavailability. Without more, these findings

do not provide a rational explanation for the BIA’s conclusion that Ms. Mukhia failed

to show prejudice.

      The Attorney General offers several possible reasons to support the Board’s

decision, including its contention that Ms. Mukhia failed to submit any additional

corroborating 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 articulate

any of the reasoning advocated by the Attorney General, and we “may not uphold an

agency action on grounds not relied on by the agency.” Mickeviciute, 327 F.3d at

1163 (quotations omitted). Rather, “[t]he agency must make plain its course of

inquiry, 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 a

result 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 its

determination that Ms. Mukhia failed to show prejudice as a result of her former

counsel’s ineffective assistance.

                             Changed Country Conditions

      “Under 8 U.S.C. § 1229a(c)(7)(C)(ii) a motion to reopen to apply for asylum

based on proof of changed country conditions is not barred by the time restriction on

filing motions to reopen if ‘such evidence is material and was not available and

would 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)).4


4
      Unlike § 1229a(c)(7)(C)(ii), the corresponding regulation also provides for an
exception to the numerical limitation applicable to motions to reopen based on proof
of changed country conditions. See 8 C.F.R. § 1003.2(c)(3)(ii). But, again, because
the 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 her

to file a successive asylum application based on changed political circumstances in

Nepal, specifically changes resulting from the Maoists becoming the ruling party.

      The BIA rejected Ms. Mukhia’s contention, stating that “[e]ven if we assume

changed country conditions or changed circumstances in Nepal (which we do not),

the respondent does not show that any such changed country conditions or changed

circumstances 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 the

evidence that Ms. Mukhia had submitted or explain why it failed to show changed

country conditions that are material to her claims for relief. Instead, the BIA stated

only that she failed to allege that her husband had been mistreated by the Maoists

since his removal to Nepal in August 2010.

      Once again, the Attorney General attempts to support the BIA’s decision with

his own detailed comparison of the conditions in Nepal at the time of Ms. Mukhia’s

IJ hearing and when she filed her second motion to reopen. As noted, however, the

Board did no such analysis. And while we have held that the continued presence of

an alien’s family members in the country of removal without further harm undercuts

an 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 factor

motion to reopen was barred solely because it was her second such motion, “[w]e
express no view on whether . . . § 1003.2(c)(3)(ii) provides a valid exception to the
numerical 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 clear

from the BIA’s order that it intended to rely solely on that ground in reaching its

decision. Because the Board did not sufficiently articulate its reasoning, we cannot

perform a meaningful review. See Mickeviciute, 327 F.3d at 1162. We therefore

direct the BIA, on remand, to explain its bases for concluding that Ms. Mukhia failed

to 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 of

its decision denying Ms. Mukhia’s motion to reopen. In doing so, we take no

position on whether there are defensible reasons for denying her motion. “We

maintain merely that such reasons must come from the BIA in the first instance, and

we remand for that explanation.” Id. at 1164.


                                                  Entered for the Court


                                                  Monroe G. McKay
                                                  Circuit Judge




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