Maatougui v. Holder ( 2013 )

FILED
United States Court of Appeals
Tenth Circuit
December 26, 2013
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
NADIA MAATOUGUI,
Petitioner,
v. Nos. 11-9546 and 12-9529
ERIC H. HOLDER, JR., Attorney
General,
Respondent.
APPEAL FROM THE UNITED STATES
BOARD OF IMMIGRATION APPEALS
Sandra Saltrese-Miller, Attorney, Denver, Colorado, for Petitioner.
Charles S. Greene, Trial Attorney, (Derek C. Julius, Senior Litigation Counsel,
with him on the brief) Office of Immigration Litigation, United States Department
of Justice, Washington, D.C., for Respondent.
Before TYMKOVICH, HOLLOWAY, Senior Judge, and GORSUCH, Circuit
Judges.
TYMKOVICH, Circuit Judge.
An immigration judge found Nadia Maatougui removable for marriage
fraud in 2004. Maatougui, a native and citizen of Morocco who has lived in the
United States since 2000, then requested asylum and four other forms of relief
from removal. In a written decision in 2009, the IJ denied the requests, and the
Board of Immigration Appeals affirmed. Maatougui petitioned for our review.
Maatougui claims the IJ and BIA erred in denying her a hardship waiver
and cancellation of removal based on their credibility determinations and the
weight they gave the evidence in her case. Under our case law, however, we do
not have jurisdiction to overturn their credibility determinations or evidence
weighing, and thus we cannot grant relief on this claim.
Maatougui also claims that changed conditions in Morocco and the
ineffective assistance of her prior counsel at a hearing in 2004 merit reopening
her case. But Maatougui has failed to present new, material, previously
unavailable evidence that justifies reopening her case. The BIA’s decision, while
concise, was not insufficient under the circumstances. And the BIA did not abuse
its discretion in declining to consider the ineffective assistance claim after
Maatougui waited over six years to raise it.
Accordingly, we DISMISS the first claim for lack of jurisdiction, and,
exercising jurisdiction under 8 U.S.C. § 1252, we DENY the second.
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I. Background
Nadia Maatougui met her first husband, Khalid Zerougui, in their home
country of Morocco. After about two years of marriage, in December 1999,
Maatougui left Morocco to visit one of her brothers living in the United States.
Maatougui then returned to Morocco, and on May 22, 2000, divorced Zerougui.
About twelve days later, she again entered the United States, this time with a
six-month visa. Not long thereafter, Zerougui also entered the United States.
After overstaying her visa, Maatougui befriended Joseph Gearhart, a United
States citizen, in December 2000. According to Maatougui, the two quickly fell
in love, and on May 7, 2001, they were wed at a driver’s license bureau in
Colorado. Based on this marriage, Maatougui applied for lawful permanent
residency on July 9, 2001; the next day, Gearhart signed a visa petition to
accompany her application.
Shortly after her marriage to Gearhart, Maatougui became pregnant with a
child, born February 28, 2002. The child’s father was not Gearhart but Zerougui,
Maatougui’s former husband. Just before the birth, on January 9, 2002, Zerougui
also married a United States citizen and, on that basis, applied for lawful
permanent residency, just like Maatougui.
As part of Zerougui’s permanent-residency application process, he was
interviewed by the Department of Homeland Security. During this interview,
Zerougui disclosed that he and Maatougui had a child together. DHS demanded
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to see the child’s birth certificate, which Zerougui later provided. The certificate
confirmed that Zerougui and Maatougui were the parents. Zerougui’s wife then
withdrew her visa petition for Zerougui, and DHS issued a notice to appear,
charging him with removability.
DHS also began investigating Maatougui. It learned that in her interview
for legal permanent residency, she failed to disclose her child’s birth. It also
learned from credit history reports that Maatougui and Zerougui shared the same
address, even though, in Maatougui’s immigration forms, she listed Gearhart’s
address as her own. Then, DHS contacted Gearhart’s mother and asked about her
son’s marital status. The mother reported that Gearhart was not married but
instead lived with his girlfriend. DHS next contacted Gearhart, who admitted that
he married Maatougui in exchange for about $2,500 and that the sole purpose of
the marriage was for Maatougui to obtain lawful residency. Gearhart
subsequently withdrew his visa petition for Maatougui.
DHS charged Maatougui as removable from the United States. DHS’s legal
basis for her removal was that Maatougui tried to procure lawful permanent
residency through fraud, a violation of 8 U.S.C. § 1182(a)(6)(C)(i) and a
deportable offense under 8 U.S.C. § 1227(a)(1)(A). Maatougui denied the
removability charge, and an evidentiary hearing on whether Maatougui had
committed fraud was set for October 2004.
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At the October 2004 hearing, an IJ in Colorado heard testimony from both
Gearhart and Maatougui, who was represented by counsel, and the DHS agent
who had been investigating Maatougui’s residency application. The DHS agent
testified first. He explained how the investigation into Maatougui’s permanent-
residency application began and how he had identified misrepresentations in her
application materials, including that she denied having any children in September
2002—almost seven months after her son’s birth—and that she listed Gearhart’s
address as her own when credit history checks showed her living at a different
address, one she shared with Zerougui. The DHS agent also explained that “[i]t is
very typical for husbands and wives to come [into] the United States . . .
separately,” and then “both pursue marriage through separate U.S. citizens” to
obtain lawful permanent residency “when in reality the[ir] relationship never
ceased to exist.” Agency R. 430. He said he believed this was the case with
Maatougui and Zerougui.
Next, Gearhart took the stand. He testified that his marriage to Maatougui
“wasn’t real.” Id. at 447. He said one of Maatougui’s brothers living in the
United States had approached Gearhart about marrying her and supporting a visa
petition for her lawful permanent residency status. The brother offered Gearhart
around two to three thousand dollars and explained that the marriage would be
“on paper only.” Id. at 448. Gearhart agreed to the arrangement. He admitted
having a “fantasy that something might happen,” as he had just been divorced and
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was “kind of lonely.” Id. But after their brief ceremony at the driver’s license
bureau, he and Maatougui went their separate ways. They never consummated the
marriage, nor did they ever live together. He called the marriage “a scam.” Id.
Finally, Maatougui took the stand. She maintained that she and Gearhart
had, in fact, a bone fide marriage. She presented some photographs to show her
and Gearhart’s life together, but she admitted that many of the photographs
depicted her and others in the same clothing, that all of the photographs were
from the summer of 2001, and that she had no other photographs of the family
together. As for how she conceived her son, she explained that her encounter
with Zerougui was a very brief affair resulting from Gearhart’s abusing her and
her deciding to flee his home for a short while.
At the conclusion of the October 2004 hearing, the IJ found Gearhart
credible and Maatougui not, and he issued a removal order for Maatougui based
on her misrepresentations during her residency application process.
Afterwards, Maatougui terminated her counsel at the time and retained new
counsel in his stead. Her new counsel assisted Maatougui in filing five different
requests for relief from the removal order—requests for asylum, cancellation of
removal, withdrawal of removal, relief under the United Nation’s Convention
Against Torture (CAT), and a hardship waiver for the joint petition requirement
of her permanent residency status. Maatougui also asked that the IJ receive
additional evidence on Gearhart’s credibility and the legitimacy of their marriage.
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The IJ agreed, and Maatougui submitted Gearhart’s tax returns in which he listed
another woman as his wife despite being married to Maatougui at the time.
The IJ also agreed to receive testimony in support of Maatougui’s various
requests for relief. At another evidentiary hearing, Maatougui presented two
experts, Dr. Marjorie Leidig (an expert on battered women) and Professor Shaul
Gabbay (an expert on sociology in the Muslim world and Morocco). Dr. Leidig
testified that she believed Maatougui was in a bona fide marriage with Gearhart
and that Gearhart had in fact abused her. Professor Gabbay testified that
Maatougui was at risk of an “honor killing”—where family members kill a
disgraced relative—if she returned to Morocco. At the conclusion of the hearing,
the IJ granted one more evidentiary hearing at which Maatougui and her mother
could testify about the threats Maatougui faced in Morocco as well as the
legitimacy of her marriage to Gearhart.
At the third and final evidentiary hearing, Maatougui and her mother both
discussed threats Maatougui received from one of her brothers, who they said was
a Muslim fundamentalist still living in Morocco. They also discussed concerns
with Maatougui’s former in-laws (parents of Zerougui), who also still lived in
Morocco and allegedly were threatening to take away Maatougui’s son. 1
1
Maatougui conceded, however, that in 2003, she visited Morocco for two
or three weeks with her son, and both returned safely.
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In addition, Maatougui again testified about her relationship with Gearhart
and how she briefly left Gearhart and conceived her son with Zerougui. In the
course of her testimony, Maatougui made several statements that were
inconsistent with her earlier testimony. For example, she said she fled to a
friend’s house after Gearhart abused her; but at the previous hearing, she had said
it was her brother’s house. She said she dated Zerougui for sometime after
leaving Gearhart, and that they were intimate about three or four times; but
previously she had said they met once and were intimate only once. And she said
her son was with her mother when she was interviewed for an adjustment to her
immigration status; but before she had said her son was with Zerougui during that
time. When confronted with each inconsistency, she offered no explanation.
Also at this last hearing, Maatougui admitted that she and Zerougui had
been using the same address, but she explained that the address was her brother’s
and that her brother allowed Zerougui to use the address for mailing purposes
only.
The IJ denied all of Maatougui’s applications for relief from the removal
order. In his opinion, he explained his credibility determinations. He found
Gearhart credible because Gearhart’s testimony was consistent with what he had
told the DHS agent before the earlier hearing; Gearhart’s statements “were made
against his penal interest because he knew filing a fraudulent petition . . . was a
crime”; and Gearhart gave his testimony “in such a manner that indicated,
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although not proud of his actions, he was telling the truth.” Agency R. 402. The
IJ found Maatougui not credible because she conceived a child with Zerougui
only a few weeks after marrying Gearhart, “call[ing] into doubt the validity of
the[ir] marriage.” Id. at 403. He also found Maatougui not credible because she
initially listed Gearhart’s birth date incorrectly on an immigration form, she failed
to list her son on her residency application, and her account of her marriage to
Gearhart and her tryst with Zerougui had changed in many significant and
unexplained respects. The IJ concluded that Maatougui committed marriage
fraud.
As for Maatougui’s claims for relief from deportation, the IJ did not find
her or Professor Gabbay’s testimony sufficient to justify any relief. The IJ noted
that Maatougui and her son had traveled to Morocco safely several times since her
marriage to Gearhart and that Professor Gabbay could not offer a single example
of recent honor killings in Morocco. Nor did the IJ find Dr. Leidig’s testimony
sufficient to show that Maatougui was abused by Gearhart or that she was in a
bona fide marriage with him, especially because Dr. Leidig interviewed only
Maatougui during her investigation. The IJ found problematic Dr. Leidig’s
reliance on Maatougui’s “self-serving statements” alone—statements that he
already found not credible. Id. at 406. At the conclusion of his decision, the IJ
ordered Maatougui’s deportation to Morocco.
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Maatougui timely appealed to the BIA. She challenged the IJ’s credibility
determinations and his denial of her various applications for relief. Further, she
said the IJ failed to review her mother’s and significant parts of Professor
Gabbay’s testimony. She also claimed her due process rights were violated by
Gearhart’s failure to appear at a hearing in 2007 despite being subpoenaed.
The BIA affirmed all of the IJ’s findings and removal order. It rejected
Maatougui’s complaint that the IJ failed to mention her mother’s testimony or
parts of Gabbay’s testimony, reasoning that the IJ is not required to “write an
exegesis.” Id. at 206. And the BIA concluded that Maatougui received a
fundamentally fair hearing, so her due process claim also failed.
Maatougui then petitioned for our review. But before we could decide this
first petition, she filed a motion to reopen her case with the BIA. The motion was
based on changed conditions in Morocco and the alleged ineffective assistance of
her prior attorney at the evidentiary hearing in October 2004. We stayed her first
petition until the motion to reopen was resolved.
The BIA then denied her motion to reopen in full. The BIA found that the
evidence for changed country conditions was previously available, cumulative,
and would not change the outcome. And it found Maatougui’s claim of
ineffective assistance untimely because both she and her present counsel knew of
prior counsel’s alleged errors and could have fully aired the claim as much as six
years earlier.
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As a result, Maatougui filed her second petition with this court, asking that
we vacate the BIA’s denial of her motion to reopen. Pursuant to 8 U.S.C.
§ 1252(b)(6), we consolidated both of Maatougui’s petitions here.
II. Analysis
A. Removal
Maatougui first challenges the BIA’s decision to affirm the IJ’s order as to
her hardship waiver and cancellation of removal requests. She makes essentially
three arguments, all of which are, at bottom, about the BIA and IJ’s credibility
determinations and how they weighed the evidence. 2
Prior to the Real ID Act of 2005, Pub. L. No. 119–13, Div. B., 119 Stat.
302 (codified in scattered sections of 8 U.S.C. (May 11, 2005)), we reviewed BIA
and IJ’s credibility determinations for substantial evidence. See, e.g., Elzour v.
Ashcroft, 378 F.3d 1143, 1150 (10th Cir. 2004). But the Real ID Act of 2005
“limit[ed] circuit-court review of credibility findings.” Ismaiel v. Mukasey, 516
F.3d 1198, 1205 n.5 (10th Cir. 2008).
In particular, under the Act, “we lack jurisdiction . . . to pass on the BIA’s
credibility determinations and the weight the Board [gives] to certain pieces of
2
The BIA used a single-member opinion to affirm the IJ’s order. Thus,
although “we will not affirm on grounds raised in the IJ decision unless they are
relied upon by the BIA[,] . . . we are not precluded from consulting the IJ’s more
complete explanation of those same grounds.” Uanreroro v. Gonzales, 443 F.3d
1197, 1204 (10th Cir. 2006).
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evidence” when considering requests for a hardship waiver. Iliev v. Holder, 613
F.3d 1019, 1022 (10th Cir. 2010). We also lack jurisdiction to review credibility
determinations and evidence weighing for cancellation of removal requests when,
as here, the basis for cancelling removal is a claim that the petitioner was a
battered spouse. Compare 8 U.S.C. § 1252(a)(2)(B)(ii) (“no court shall have
jurisdiction to review * * * any other decision or action of the Attorney General
. . . which is specified under [subchapter II of title 8’s chapter 12] to be in the
discretion of the Attorney General”), with 8 U.S.C. § 1229b(b)(2)(D) (when
reviewing cancellation of removal for a battered spouse, which is a decision under
subchapter II of title 8’s chapter 12, “[t]he determination of what evidence is
credible and the weight to be given that evidence shall be within the sole
discretion of the Attorney General”). See generally Iliev, 613 F.3d at 1022–23
(explaining how § 1252(a)(2)(B)(ii) withdraws from our jurisdiction certain
credibility determinations and evidence weighing). And because Maatougui’s
applications for relief were filed after May 11, 2005, the Act applies. See
Ismaiel, 516 F.3d at 1205 n.5.
In her first argument, Maatougui claims she was a victim of domestic
violence while married to Gearhart, and as a battered immigrant, she is protected
by the “relaxed evidentiary standard for relief applications” under the Violence
Against Women Act—evidentiary standards that, she says, the IJ and BIA did not
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apply because they failed to give appropriate weight to all “credible evidence.”
Aplt. Br. at 31 (quoting 8 U.S.C. § 1229b(b)(2)(D)).
But which evidence is credible and how much weight should be given to
the evidence are not decisions we can review for a cancellation of removal claim
like this one. Thus, even if Maatougui is correct that the IJ and BIA “gave no
weight” to testimony suggesting Gearhart abused her, id. at 36, we do not have
jurisdiction to reevaluate that determination, see 8 U.S.C. § 1229b(b)(2)(D).
Maatougui’s second argument is framed as a constitutional one, but in fact,
it is another challenge to the agency’s credibility determinations and evidence
weighing. And “a challenge to the agency’s discretionary and fact-finding
exercises cloaked in constitutional garb . . . remain[s] outside the scope of
judicial review.” Kechkar v. Gonzales, 500 F.3d 1080, 1084 (10th Cir. 2007)
(internal quotation marks omitted); see also Iliev, 613 F.3d at 1028. Maatougui
claims the IJ and BIA violated her constitutional rights because they found her
testimony incredible based on her infidelity to Gearhart and because they found
Gearhart’s testimony credible despite his filing false tax returns. But again, as a
challenge to a hardship waiver or a cancellation of removal decision, these are not
arguments we have jurisdiction to entertain. 3
3
To the extent Maatougui develops a constitutional claim, her legal
authority—Loving v. Virginia, 388 U.S. 1 (1967) (finding race-based marriage
restrictions unconstitutional), and Revelis v. Napolitano, 844 F. Supp. 2d 915
(N.D. Ill. 2012) (holding members of Congress may intervene to defend the
(continued...)
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Maatougui’s last argument is also about credibility and the weighing of
evidence. She claims the IJ and BIA “failed to conduct an adequate review of
[her expert Professor Shaul Gabbay’s] testimony.” Aplt. Br. at 40. She
acknowledges that the BIA dismissed Professor Gabbay’s conclusion about the
frequency of honor killings because Professor Gabbay “could not, when pressed,
identify a single specific instance [of honor killings in Morocco].” Id. at 40–41
(internal quotation marks omitted). But, she counters, the BIA dismissed
Gabbay’s conclusion in error because “Professor Gabbay contradicted the U.S.
State Department report which stated that ‘honor crimes . . . remained extremely
rare.’” Id. at 41 (emphasis in original). Yet the decision to believe one expert
(the State Department) over another (Professor Gabbay) is, in its very essence, a
decision about the two experts’ credibility and the weight to give their
evidence—and thus a decision Maatougui cannot challenge here. 4
3
(...continued)
constitutionality of DOMA)—is not relevant here.
4
Maatougui also appears to challenge the BIA’s analysis of Professor
Gabbay’s testimony with respect to her asylum claim. But that issue is irrelevant
because Maatougui has not challenged the BIA’s decision to deny asylum even if
she were otherwise eligible for such relief. To obtain asylum, aliens must pass
two stages: first, they must prove eligiblility for asylum; and second, they must
“persuade the Attorney General to exercise his discretion and grant [asylum]
relief.” Ba v. Mukasey, 539 F.3d 1265, 1268 (10th Cir. 2008).
In this case, the IJ decided—and the BIA affirmed—that, even if Maatougui
were entitled to asylum (first stage), her application would be “properly denied
. . . as a matter of discretion” (second stage). Agency R. 205. But Maatougui
(continued...)
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In sum, we have no jurisdiction to consider Maatougui’s removal claims.
B. Motion to Reopen—Country Conditions and Ineffective Counsel
Maatougui also challenges the BIA’s denial of her motion to reopen the
case. She presents two bases for her motion. First, she claims changed
conditions in Morocco merit revisiting her applications for asylum, withholding
of removal, and protection against torture. Second, she claims she was
ineffectively assisted by prior counsel at a hearing in October 2004. 5
4
(...continued)
uses Professor Gabbay’s testimony—if at all—only to challenge the BIA’s
eligibility decision, not to challenge the BIA’s discretionary decision. Thus, even
if we agreed with Maatougui’s challenge as to her eligibility, we could not grant
relief in light of the BIA’s unchallenged exercise of its discretion.
5
Maatougui also argues that the BIA’s decision should be reversed
because the BIA reviewed her motion with a one-member instead of a
three-member panel. Her authority is 8 C.F.R. § 1003.1(e)(6) (West 2013), but
that regulation does not mandate three-member panels. Rather, it outlines the
“only” circumstances under which a case “may . . . be assigned for review by a
three-member panel . . . .” Id. (emphasis added); see also Bropleh v. Gonzales,
428 F.3d 772, 779 (8th Cir. 2005) (concluding the BIA’s decision not to refer an
appeal to a three-member panel is “discretionary,” thus depriving the court of
jurisdiction to review the decision). But see Purveegiin v. Gonzales, 448 F.3d
684, 692 (3d Cir. 2006) (“The decision to employ single-member review is not a
matter ‘committed to agency discretion.’”). In any event, Maatougui does not
demonstrate that any of the circumstances permitting three-member panels apply
here. She claims a panel was necessary both to review “a decision by an [IJ] . . .
that is not in conformity with the law or with applicable precedents,” and to
review “a clearly erroneous factual determination by an [IJ].” Aplt. Br. at 28
(quoting 8 C.F.R. §§ 1003.1(e)(6)(iii), (v)). But the BIA was not reviewing an
IJ’s decision on her motion to reopen—it was reviewing only whether her
additional evidence merited reopening the case.
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Before analyzing Maatougui’s reasons for reopening the case, we briefly
survey our standard of review and the legal background for motions to reopen.
“[W]e review the BIA’s decision on a motion to reopen [only] for an abuse
of discretion. 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.” Infanzon v.
Ashcroft, 386 F.3d 1359, 1362 (10th Cir. 2004) (internal quotation marks
omitted). The BIA does not abuse its discretion when “its rationale is clear, there
is no departure from established policies, and its statements are a correct
interpretation of the law,” even when the BIA’s decision is “succinct.” Id.
“There is a strong public interest in bringing litigation to a close as
promptly as is consistent with the interest in giving the adversaries a fair
opportunity to develop and present their respective cases.” INS v. Abudu, 485
U.S. 94, 107 (1988). And “the reasons for giving deference to agency decisions
on petitions for reopening . . . in other administrative contexts apply with even
greater force in the [immigration] context.” Id. at 110. Accordingly, motions to
reopen immigration cases are “plainly disfavor[ed],” and Maatougui bears a
“heavy burden” to show the BIA abused its discretion. Id.
To merit reopening her case, Maatougui “must ‘state the new facts that will
be proven at a hearing to be held if the motion is granted,’” and she must support
those facts with “‘affidavits or other evidentiary material.’” Xiu Mei Wei v.
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Mukasey, 545 F.3d 1248, 1251 (10th Cir. 2008) (quoting 8 U.S.C.
§ 1229a(c)(7)(B) (2008)).
And not just any new facts will do. The new facts Maatougui presents must
demonstrate that “if proceedings before the [IJ] were reopened, with all the
attendant delays, the new evidence offered would likely change the result in the
case.” In re Coelho, 20 I. & N. Dec. 464, 473 (B.I.A. 1992). Even then, “the
BIA has discretion to deny a motion to reopen [though] the alien has made out a
prima facie case for relief.” Abudu, 485 U.S. at 105–06.
We now turn to the evidence Maatougui presented to see whether the BIA
abused its discretion in declining to reopen her case.
1. Changed Country Conditions
Maatougui’s first basis for reopening her case is that conditions in Morocco
have changed since the IJ’s final decision in June 2009.
To support this claim, Maatougui presented the BIA with nine exhibits that,
she says, justify asylum, withholding of removal, and protection from torture (i.e.,
relief under the CAT). 6 “To be eligible for asylum, an alien must establish by the
6
Maatougui’s evidence consisted of (1) a report by Professor Rachel
Newcomb on Morocco’s conditions since the Arab Spring, (2) a copy of
Maatougui’s 2011 asylum application, (3) her own sworn declaration, (4) the
transcript of her mother’s testimony at an earlier hearing, (5) a declaration from
her mother, (6) three news articles from 2011, (7) one news article from 2005, (8)
an excerpt from the State Department’s April 2011 report on Morocco, and (9)
photographs of one of her brothers in what appears to be the uniform of a
Moroccan law enforcement officer.
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preponderance of the evidence that he or she is a refugee.” Rivera-Barrientos v.
Holder, 666 F.3d 641, 645–46 (10th Cir. 2012). “An applicant may obtain
refugee status in one of three ways,” including, as relevant here, “through
evidence of a well-founded fear of future persecution.” Id. at 646.
Eligibility for withholding of removal requires a showing of evidence
“more stringent tha[n] the showing required for asylum.” Zhi Wei Pang v.
Holder, 665 F.3d 1226, 1233 (10th Cir. 2012). Because we ultimately conclude
that the BIA did not abuse its discretion in finding Maatougui’s evidence
insufficient for asylum relief, we do not address withholding of removal further.
Finally, “[t]o be eligible for relief under the CAT, an individual must
‘establish that it is more likely than not that he or she would be tortured if
removed to the proposed country of removal.’” Id. at 1233–34 (quoting 8 C.F.R.
§ 208.16(c)(2) (2000)). Because Maatougui does not provide any new evidence
of a risk that she will be tortured in Morocco, we also do not address her claim
for relief under the CAT.
Citing 8 C.F.R. § 1003.2(c)(1), which states the BIA’s standard for
reviewing motions to reopen, 7 the BIA gave three reasons why Maatougui’s
evidence did not merit reopening her case under any theory of relief: (1) “most of
7
The regulation provides, “A motion to reopen proceedings shall not be
granted unless it appears to the Board that 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) (West 2013).
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the additional evidence . . . was previously available,” (2) “the evidence is
cumulative in nature,” and (3) “the evidence . . . would not change the outcome.”
Agency R. 4.
Maatougui objects to the BIA’s analysis for two reasons. Her first
objection is that the BIA either misread or failed to review her new evidence. But
our review of the record confirms each of the BIA’s reasons for denying the
motion.
Turning to the BIA’s first reason, it is indeed the case that “most of
[Maatougui’s] additional evidence . . . was previously available.” Id. The IJ’s
decision was issued on June 4, 2009. But the information in at least five of
Maatougui’s nine exhibits was available before that date: her asylum application,
while filed in 2011, merely reiterates her earlier testimony to the IJ; her sworn
declaration, submitted with her 2011 asylum application, also rehashes what she
said before the IJ previously; the transcript of her mother’s testimony is from
2008; her mother’s sworn declaration, though dated June 18, 2011, also provides
only evidence that was previously available; and one news article is from 2005.
Maatougui does not explain why these five exhibits were not submitted before.
The BIA’s other two reasons for rejecting Maatougui’s claim of changed
country circumstances—that “the evidence is cumulative in nature,” and that “the
evidence . . . would not change the outcome”—apply to Maatougui’s remaining
four exhibits.
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First, the three news articles from 2011 do not contain any material,
non-cumulative information. The first article describes how one Moroccan
woman set herself on fire after the government denied her a permit to build on
land adjacent to her father’s land. But this incident does not demonstrate the
basis for a well-founded fear of retaliation in Maatougui’s case.
The second article describes how, since 2009, “[d]ivorced women in the
workforce and unemployed women at home [] face higher instances of violence.”
Id. at 123. But these new facts do not make a prima facie case for asylum. The
first requirement for asylum eligibility is being a “refugee,” which means being
“unable or unwilling to return . . . ‘because of . . . a well-founded fear of
persecution on account of race, religion, nationality, membership in a particular
social group, or political opinion.’” Rivera-Barrientos, 666 F.3d at 645–46. And
gender alone is not a sufficiently distinct “social group” on which to base a
“refugee” finding. See Niang v. Gonzales, 422 F.3d 1187, 1199 (10th Cir. 2005)
(“One may be reluctant to permit . . . half a nation’s residents to obtain asylum on
the ground that women are persecuted there.”). Even if we re-characterized the
relevant social group as “divorced single mothers previously married to a
Westerner,” as Maatougui requests, the evidence from this article does not
mention anything about former wives of Westerners, and the article’s reference to
divorced women experiencing “higher instances of violence” in general is not
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sufficiently “direct[] and specific” to “support a reasonable fear” of Maatougui’s
persecution. Wiransane v. Ashcroft, 366 F.3d 889, 893 (10th Cir. 2004).
The third 2011 article says nothing about persecution to anyone fitting into
Maatougui’s “social group” or any other possible group for her asylum claim, nor
does it illustrate a torture threat for Maatougui.
Second, Professor Newcomb’s two-page report for Maatougui contains both
cumulative and immaterial evidence. The only new evidence in Professor
Newcomb’s report are allegations that the “chaos and lawlessness of the political
situation [post-Arab Spring] mean that the rule of law is even less likely to be
followed,” and that “the King of Morocco recently released 190 political
prisoners, many of whom are Islamists.” Agency R. 80–81.
But greater lawlessness in general does not show persecution of a protected
class, as is required for asylum relief. Nor does the allegation about released
prisoners. It is unclear how many of the 190 recently released prisoners are
Islamist—Professor Newcomb merely says “many” are. And it is unclear how the
presence of more Islamists in Morocco justifies a well-founded fear for
Maatougui, as she has presented no evidence of Islamists in particular posing
danger to a protected class to which she belongs.
Third, the excerpt from the State Department’s 2011 report on Morocco
also does not contain non-cumulative information. The IJ and BIA had previously
relied upon a 2005 State Department report on Morocco, so the 2011 report is
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relevant to Maatougui’s motion only if it presents material facts that were
unavailable in the prior report. To that end, Maatougui claims the State
Department’s 2011 report adds new insights on the “unequal treatment of women”
and the lack of protection against rape. Aplt. Br. at 21–22.
But these details are not new. The 2005 State Department report also noted
the unequal treatment of women in Morocco—“[e]ven in cases in which the law
provides for equal status.” Agency R. 851. And it described the lack of
protection against rape and the practice of “[rape] victim[s’] families . . .
offer[ing] rapists the opportunity to marry their victims in order to preserve the
honor of the family.” Id. Because the 2011 report is cumulative, Maatougui
cannot use it to justify reopening her case.
The fourth and final remaining exhibit is a collection of photographs
purportedly taken of one of Maatougui’s brothers dressed in what appears to be
Moroccan law enforcement attire. But in 2008, Maatougui testified before the IJ
that one of her brothers was in Moroccan law enforcement. And she does not
explain how these photographs are anything more than cumulative (let alone not
previously available). Accordingly, the BIA’s reasons for denying her motion to
reopen apply to this evidence, too.
Maatougui’s counter-arguments are unpersuasive. She says that her
mother’s testimony is clear evidence that Maatougui will face persecution upon
deportation. But Maatougui needs evidence that was not previously available to
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justify reopening her case. Maatougui also says the BIA failed to address
“critical” polygraph test results that she submitted with her motion to reopen.
Aplt. Br. at 27. But by her own admission, this evidence was previously
available, see Agency R. 38, and thus is inappropriate for a motion to reopen.
Finally, Maatougui claims the decision in Fessehaye v. Gonzales, 414 F.3d
746 (7th Cir. 2005), dictates granting relief on this record. In Fessehaye, the
Seventh Circuit reversed the BIA’s denial of a motion to reopen where the
petitioner “clearly supplied evidence of the quality and quantity that the Board
reasonably could expect” to show her “‘new fact,’” namely, “her decision to
convert to her husband’s faith,” Jehovah’s Witness. Id. at 755. But the point here
is that Maatougui presented no new facts relevant to her removal petition.
In short, Maatougui’s first objection—that the BIA did not properly assess
her evidence—is unavailing.
Maatougui’s second objection is that the BIA’s reasoning is too brief and
conclusory to permit meaningful appellate review. To be sure, the BIA’s
reasoning for her changed-conditions claim is succinct. But that, by itself, is not
an abuse of discretion. See Infanzon, 386 F.3d at 1362 (noting a “succinct”
decision is not necessarily an abuse of discretion); see also Mendoza v. U.S. Att’y
Gen., 327 F.3d 1283, 1289 (11th Cir. 2003) (“That a one-sentence order was
entered is no evidence that the BIA member did not review the facts of
Mendoza’s case.”). The BIA is not required to “write an exegesis on every
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contention. What is required is [] that it consider the issues raised, and announce
its decision in terms sufficient to enable a reviewing court to perceive that it has
heard and thought and not merely reacted.” Becerra-Jimenez v. INS, 829 F.2d
996, 1000 (10th Cir. 1987) (internal quotation marks omitted). And here, as our
foregoing discussion about Maatougui’s first objection illustrates, the BIA’s
reasoning is in fact sufficient for meaningful appellate review.
Maatougui also argues that our need to examine the record shows that the
BIA’s rationale was insufficiently articulated, because, as she rightly points out,
we may not search the record for reasons to support the BIA’s decision. Aplt. Br.
at 15 (citing Mickeviciute v. INS, 327 F.3d 1159, 1162–63 (10th Cir. 2003)). But
while she cites the correct rule, she misapplies it here. We are not searching the
record for the BIA’s reasons; its three reasons are clear. Rather, we are searching
the record to see if it supports those reasons. Cf. Jimenez-Guzman v. Holder, 642
F.3d 1294, 1298 (10th Cir. 2011) (finding the BIA did not abuse its discretion in
part because “the record . . . belie[d]” the petitioner’s claims).
Maatougui’s second objection to the BIA’s reasoning—that it is insufficient
for appellate review—does not merit remand. In sum, Maatougui has failed to
show that the BIA abused its discretion in denying her motion to reopen based on
changed country conditions.
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2. Ineffective Assistance of Counsel (IAC)
Maatougui’s second basis for reopening her case is that her first counsel
rendered ineffective assistance in 2004. To support this IAC claim, Maatougui
highlights two alleged errors: first, counsel instructed her not to file a Form
I-751 (petition to remove conditions on residency); and second, during her
October 2004 evidentiary hearing, counsel failed to impeach Gearhart with
Gearhart’s false 2003 tax returns (where he listed his girlfriend as his wife even
though he was legally married to Maatougui at the time).
The BIA dismissed this ground for reopening the case because Maatougui
had not shown “due diligence” in pursuing the claim by “wait[ing] over 6 years to
file such a motion.” Agency R. 4. It explained, “[Maatougui’s] current counsel
has represented [her] since the end of 2004. If current counsel believed that
ineffective assistance of former counsel occurred prior to that time, current
counsel could have made such a claim to the Immigration Judge, or to the Board
during the pendency of the appeal.” Id.
Maatougui objects to the BIA’s decision for two reasons. Her first
objection is that the BIA’s reasoning “runs afoul of well-settled law [] that the
petitioner who is asserting ineffective of [sic] assistance must exhaust his/her
remedies.” Aplt. Br. at 28. She explains, “[T]he matter was not yet ripe to assert
ineffective assistance of counsel” at the time she learned of her prior counsel’s
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ineffectiveness because “there was no final order and [Maatougui] could not
foresee that she would not prevail on her claims for relief.” Id. at 29.
Her authority is In re Lozada, 19 I. & N. Dec. 637 (B.I.A. 1988), which
establishes the procedure for asserting an IAC claim in an immigration case. But
the Lozada opinion does not require a petitioner to wait until a motion to reopen
with the BIA in order to raise an IAC claim.
Indeed, Maatougui could have raised her IAC claim in a motion to reopen
with the IJ after the decision in 2004 or after the decision in 2009. See 8 C.F.R.
§ 1003.23(b)(1) (West 2013) (“An [IJ] may . . . upon motion of the . . . alien,
reopen . . . any case in which he or she has made a decision . . . .”); see also
Khrystotodorov v. Mukasey, 551 F.3d 775, 784–85 (8th Cir. 2008) (affirming an
IJ’s denial of a motion to reopen). The BIA said as much—“current counsel
could have made such a claim to the Immigration Judge.” Agency R. 4.
Such an approach is not novel in this circuit. See Hernandez v. Holder, 412
F. App’x 155 (10th Cir. 2011) (petitioners raised their IAC claim in a motion to
reopen before the IJ, which the IJ denied and the BIA later affirmed). Nor can
Maatougui point us to a judicial opinion or regulation requiring IAC claims in
immigration cases to be raised only after appeal to the BIA.
Moreover, we have long observed that “[r]emovable aliens are not
permitted to delay matters by pursuing multiple avenues of relief seriatim when
no reason suggests why they could not be pursued simultaneously.” Galvez
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Pineda v. Gonzales, 427 F.3d 833, 839 (10th Cir. 2005). Here, no reason suggests
why Maatougui could not have brought her IAC claim when she raised her other
grounds for relief in 2005 or before she appealed the IJ’s decision in 2009. To
the contrary, the record demonstrates she could have brought her claim at either
point. On July 11, 2005, she signed a sworn affidavit explaining she did not file a
timely I-751 because “my first attorney . . . advised against it.” Agency R. 869.
And on July 12, 2005, she moved that the IJ admit Gearhart’s 2003 tax
returns—the very documents her prior counsel failed to present at the October
2004 hearing. See id. at 857–58. Thus, by 2005, she was aware of both alleged
errors that now make up her IAC claim.
In fact, Maatougui already tested the waters with this IAC claim at hearings
before the IJ in 2006 and 2008. In 2006, Maatougui’s present counsel informed
the IJ that she was going to raise a “Lozada type claim, whereby the previous
attorney was ineffective” based on his failure to file a Form-751 and his failure to
confront Gearhart with his 2003 tax returns at the October 2004 hearing. Id. at
565; see also id. at 628. The IJ then invited Maatougui’s current counsel to
“bring more evidence” to correct prior counsel’s alleged errors, which she did by
submitting Gearhart’s 2003 tax returns. But the IJ also explained that, as to the
IAC claim itself, he was not likely to find prejudice because “it was basically just
a question of credibility of the witnesses[, a]nd I found that [Gearhart] was
credible.” Id. at 566–67.
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Then, at a hearing in 2008, Maatougui’s present counsel reiterated, “Mr.
Gearhart perjured himself . . . as indicated by his tax forms. . . . [And] prior
counsel . . . never challenged him, never investigated it thoroughly. And my
client was hung out to dry, because of the negligence of [prior counsel].” Id. at
646–47. To this second ineffective-assistance reference, the IJ responded, “Well
I’ll address that, too. But . . . I think I’m going to have to do a written decision,”
id. at 647, a decision he issued the following year.
Although the IJ did not, in his final written decision, explicitly address
these attempts at an IAC claim, Maatougui did not move for the IJ to reconsider
or reopen her case, nor did she raise the IJ’s failure in her direct appeal. Instead,
she waited until a motion to reopen with the BIA. But Maatougui is “not
permitted to delay matters by pursuing multiple avenues of relief seriatim,”
Galvez Pineda, 427 F.3d at 839—at least, not without an adequate explanation for
her delay. And she offers no such explanation here.
In sum, Maatougui could have asserted her IAC claim to reopen the case
immediately after the IJ found her removable in 2004 or immediately after he
denied relief from removal in 2009. Therefore, she cannot show, as she must, that
her “evidence sought to be offered . . . was not available and could not have been
discovered or presented at the former hearing.” 8 C.F.R. § 1003.2(c)(1).
Her second objection is that the BIA misconstrued her motion as untimely.
She notes that the BIA cited three opinions from our court in support of its
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decision to reject her IAC claim. But, she explains, those three cases all
addressed motions to reopen filed after the statutory period of ninety days. Here,
by contrast, her motion was filed within the ninety-day period.
Maatougui is correct—the three cases cited by the BIA all involved
untimely motions, 8 whereas Maatougui’s motion to reopen her case with the BIA
was timely. But while the BIA cited the wrong cases, it did not apply the wrong
regulation. The BIA relied on 8 C.F.R. § 1003.2(c)(1), which directs the BIA not
to grant motions to reopen unless the evidence presented was not available and
could not have been presented earlier. And the BIA did not misapply that
regulation. As outlined above, Maatougui knew of her IAC claim and the
supporting evidence and could have presented the claim and evidence years
earlier.
Nor does our decision in Osei v. INS, 305 F.3d 1205 (10th Cir. 2002),
demand a different result. In Osei, we held that the BIA abused its discretion
when it denied a motion to reopen by “mere citation” to 8 C.F.R. § 1003.2(c)(1). 9
Osei, 305 F.3d at 1208. The government argued that § 1003.2(c)(1) prevents an
8
The three cases cited by the BIA were Mahamat v. Gonzales, 430 F.3d
1281, 1283 (10th Cir. 2005), Infanzon, 386 F.3d at 1362–63, and Riley v. INS, 310
F.3d 1253, 1257–58 (10th Cir. 2002).
9
When we decided Osei, the applicable regulation was 8 C.F.R.
§ 3.2(c)(1). The regulation was renumbered in 2003. See 68 Fed. Reg. 9824,
9846 (Feb. 28, 2003) (“All references in part 1003 to ‘§ 3.’ are revised to read
‘§ 1003.’.”).
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alien from asserting an IAC claim “if the evidence of counsel’s ineffectiveness
was available on direct appeal.” Id. at 1208–09. We did not address whether
Osei and his new counsel actually knew of his prior counsel’s errors at the time of
Osei’s direct appeal. Rather, we rejected the government’s argument because the
government could not cite a single case in which the BIA “denied a motion to
reopen raising a claim of ineffective assistance on the basis that the motion to
reopen fails to comply with § [100]3.2(c)(1).” Id. at 1209. Nor could we find
such a case at the time. To the contrary, we found that the BIA then “regularly
evaluated such motions to reopen based merely on whether they satisfy the
requirements set out in Lozada,” not based on whether § 1003.2(c)(1) applied. Id.
But here, it is clear that both Maatougui and her present counsel knew of
prior counsel’s alleged ineffective assistance before the appeal—indeed, well
before the IJ’s final decision itself. And Maatougui seeks only to introduce
essentially the same evidence that was available to the IJ years earlier, the one
exception being results from a polygraph test, which Maatougui admits could
have been submitted previously, too. See Agency R. 38.
A similar situation arose in Gui Qin Wang v. Holder, 389 F. App’x 68 (2d
Cir. 2010), an unpublished decision where the BIA denied a motion to reopen for
an IAC claim because the petitioner failed to raise her IAC claim with the IJ or on
her direct appeal. In Wang, as here, “both [the petitioner] and her new attorney
were aware of the alleged ineffective assistance before filing her appeal to the
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BIA.” Id. at 70 (emphasis added). Accordingly, explained the Second Circuit,
“the BIA reasonably determined that [the petitioner’s] evidence was not
previously unavailable,” so the BIA “did not abuse its discretion in denying her
motion to reopen.” Id.
Wang is consistent with the rule in other circuits. For example, in Toure v.
Holder, 624 F.3d 422 (7th Cir. 2010), the BIA denied the petitioner’s motion to
reopen in part because the petitioner failed to establish that the key piece of
evidence for his IAC claim was previously unavailable. Id. at 431. Citing the
same regulation at issue here—8 C.F.R. § 1003.2(c)(1)—as well as testimony
showing that the petitioner did in fact know of this key evidence before his
appeal, the Seventh Circuit concluded the BIA did not abuse its discretion in
denying the motion on that basis. Id. Similarly, in Massis v. Mukasey, 549 F.3d
631 (4th Cir. 2008), the BIA denied another petitioner’s motion to reopen and
reconsider based on ineffective assistance where the petitioner “had failed to ‘file
a motion to reopen within a reasonable period of the alleged ineffective
assistance.’” Id. at 634 (quoting the BIA). The Fourth Circuit also concluded
that the BIA had not abused its discretion in denying on that basis. Id. at 637.
What is more, the BIA in this case did more than merely cite to 8 C.F.R.
§ 1003.2(c)(1). It specifically referenced Maatougui’s and present counsel’s
awareness of this claim years earlier and the opportunity they had to raise this
claim before the IJ or on direct appeal. And given the clear authority for motions
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to reopen and motions to reconsider before the IJ, see 8 C.F.R. § 1003.23(b)(1),
Maatougui in fact failed to demonstrate due diligence by not raising this IAC
claim in a timely motion after either of the IJ’s decisions.
Consequently, though Osei addressed a similar issue, it does not require the
same result. The BIA in this case did not abuse its discretion in denying a motion
to reopen based on the IAC claim presented here.
III. Conclusion
For the foregoing reasons, we DISMISS for lack of jurisdiction
Maatougui’s petition to review the BIA’s decision on her removability, and we
DENY her petition to review the BIA’s denial of her motion to reopen the case.
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