Teclezghi v. Holder

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MAKDA FESSEHAIE TECLEZGHI, 
Petitioner,
No. 07-70661
v.
 Agency No.
ERIC H. HOLDER Jr., Attorney A075-618-966
General,
Respondent.

MAKDA FESSEHAIE TECLEZGHI, 
Petitioner, No. 07-71463
v.
 Agency No.
A075-618-966
ERIC H. HOLDER Jr., Attorney
General, ORDER
Respondent.

Filed January 4, 2011
Before: Betty B. Fletcher and Andrew J. Kleinfeld,
Circuit Judges, and Kevin Thomas Duffy,*
Senior District Judge.
Order;
Dissent by Judge Pregerson
*The Honorable Kevin Thomas Duffy, Senior United States District
Judge for the Southern District of New York, sitting by designation.
291
292 TECLEZGHI v. HOLDER
ORDER
Judges Kleinfeld and Duffy voted to deny the petition for
rehearing. Judge Fletcher voted to grant the petition for
rehearing. Judges Kleinfeld and Duffy recommend denying
the petition for rehearing en banc, and Judge Fletcher recom-
mends granting the petition for rehearing en banc.
The full court was advised of the petition for rehearing en
banc, and a judge of the court requested a vote on whether to
rehear the case en banc. The en banc call failed to receive a
majority of votes by active judges in favor of en banc consid-
eration. Fed. R. App. P. 35.
The petition for rehearing and the petition for rehearing en
banc are DENIED.
PREGERSON, Circuit Judge, dissenting from the denial of
rehearing en banc:
An attorney representing an asylum seeker has a duty to
investigate all grounds upon which an applicant may be enti-
tled to relief. However, the panel majority in this case errone-
ously and absurdly concludes otherwise. The panel majority
holds that an attorney does not provide ineffective assistance
of counsel when she fails to inquire as to whether her female
client has suffered female genital mutilation when (1) nearly
90 percent of women in the client’s home country endure such
a brutal procedure, and (2) it is well-settled that female genital
mutilation constitutes persecution sufficient to warrant a grant
of asylum.
Specifically, the panel majority tells us that an attorney
does not perform incompetently in these circumstances by
failing “to inquire of his or her own accord into the condition
of a client’s genitals . . . .” Teclezghi v. Holder, 378 F. App’x
TECLEZGHI v. HOLDER 293
615, 618 (9th Cir. 2010). As Judge Betty Fletcher wrote in her
dissent, the panel majority elevates the “potential discomfort
a lawyer might feel in asking a woman whether she has suf-
fered female genital mutilation over the lawyer’s duty to do
his or her job.” Id. at 619 (B. Fletcher, J., dissenting). Because
I believe the panel majority’s decision will have a detrimental
effect on asylum seekers and is completely contrary to our
precedent, I dissent from the denial of rehearing en banc.
Teclezghi timely applied for political asylum claiming per-
secution on account of religion. Her asylum application was
denied by the IJ, the BIA, and this court. See Teclezghi v.
Gonzalez, 187 F. App’x 749, 750-51 (9th Cir. 2006). Teclez-
ghi filed a motion to reopen based on the ineffective assis-
tance of her previous attorneys, who all failed to ask her
whether she had suffered female genital mutilation, a basis
upon which she could have applied for asylum. Teclezghi, 378
F. App’x at 616. The BIA denied Teclezghi’s motion to
reopen as untimely and this court dismissed her petition for
review. Id. at 616-17. We voted on whether to rehear this case
en banc, and a majority of the active judges of this court did
not vote for a rehearing en banc.
I dissent from the denial of rehearing en banc. The BIA
clearly erred in failing to equitably toll the deadline for
Teclezghi to file her motion to reopen until she definitively
discovered her prior attorneys’ ineffective assistance. See
Singh v. Gonzales, 491 F.3d 1090, 1096 (9th Cir. 2007). The
panel majority’s conclusion that Teclezghi did not suffer inef-
fective assistance of counsel and the panel majority’s refusal
to equitably toll the deadline until Teclezghi discovered her
prior counsels’ incompetence is contrary to our precedent.
I. Ineffective Assistance of Counsel
To prevail on an ineffective assistance of counsel claim,
“the petitioner must demonstrate first that counsel failed to
perform with sufficient competence, and, second, that she was
294 TECLEZGHI v. HOLDER
prejudiced by counsel’s performance.” Mohammed v. Gon-
zales, 400 F.3d 785, 793 (9th Cir. 2005).
A. Failure to Perform with Sufficient Competence
Teclezghi’s attorneys undoubtedly failed to perform with
sufficient competence. The 2005 Department of State Report
on Human Rights practices in Eritrea, which was submitted to
the court, shows that nearly 90 percent of women in Eritrea
endure female genital mutilation. Teclezghi, 378 F. App’x at
619 (B. Fletcher, J., dissenting). The attorneys in this case
should have known of the “high probability that Teclezghi
would be eligible for asylum because she had undergone this
brutal procedure.” Id. However, all of Teclezghi’s attorneys
failed to inquire into and raise female genital mutilation as a
ground for asylum. This clearly falls below the standards of
competency.
Nevertheless, the panel majority concludes that Teclezghi’s
attorneys did not fail to perform with sufficient competence
when they “failed to ask her an intensely personal question
and raise a claim for relief that [she] admittedly never men-
tioned to them.” Id. at 618. But this is to be expected. Most
women who have been sexually traumatized (because of sex-
ual violence, forced abortions, or female genital mutilation)
“find it extremely difficult to talk about [their experiences].”
Nahla Valji, Lee Anne De La Hunt, Gender Guidelines for
Asylum Determination, THE UNIVERSITY OF CAPE TOWN LEGAL
AID CLINIC, NATIONAL CONSORTIUM ON REFUGEE AFFAIRS, 23
(1999), available at www.web.net/ccr/safr.PDF. In a South
African case study, of the 678 female client files reviewed,
“none mentioned [Female Genital Cutting] as a reason for
seeking asylum.” Lindsay M. Harris, Untold Stories: Gender
Related Persecution and Asylum in South Africa, 15 MICH. J.
GENDER & L. 291, 314 (2009). Harris also interviewed eigh-
teen women who had experienced some form of gender-
related persecution and “[s]everal women . . . failed to realize
that such disclosure was necessary to obtain refugee status.”
TECLEZGHI v. HOLDER 295
Id. at 334. Some women did not disclose details of their
gender-related persecution “because they were not asked
questions to elicit such information” and “did not understand
the importance of disclosing details of their persecution.” Id.
Contrary to the panel majority’s view, immigration attor-
neys do have a duty to identify all forms of relief that are
available to their clients, including female genital mutilation.
In turn, clients should be able to rely on their attorneys to
competently perform this duty. Teclezghi had no reason to
know that her female genital mutilation would qualify as a
basis of asylum in the United States. The panel majority, how-
ever, erroneously places the burden on the asylum seeker to
relay all types of personal facts to her attorney, regardless of
whether the asylum seeker knows the facts are relevant to her
asylum claim. Whereas this court has recognized that the bur-
den of inquiry and investigation of potential forms of immi-
gration relief is on the attorney, see Mohammed, 400 F.3d at792 n.7, the panel majority here incorrectly shifted the burden
of inquiry to the asylum seeker.
Furthermore, the panel majority’s holding runs contrary to
the ethical standards of competence and diligence that govern
all attorney conduct. The advisory committee notes for Rule
1.1 of the Model Rules of Professional Conduct explain that
“competent handling of a particular matter includes inquiry
into and analysis of the factual and legal elements of the prob-
lem . . . .” MODEL RULES OF PROF’L CONDUCT R. 1.1 cmt. 5
(2002). The panel majority forgives attorneys for failing to
inquire about or investigate relevant country conditions that
have a 90 percent likelihood of applying to their clients’
claims for political asylum. This abrogates the attorney’s
responsibility to inquire about and analyze the factual and
legal elements relevant to her client’s claim. Id. This is not
“competent handling” and would likely lead to unfair and
unfortunate results in asylum proceedings.
296 TECLEZGHI v. HOLDER
B. Prejudice
“[P]rejudice results when the performance of counsel was
so inadequate that it may have affected the outcome of the
proceedings.” Mohammed, 400 F.3d at 793-94 (emphasis in
original) (internal quotation marks and citation omitted).
Teclezghi certainly suffered prejudice because of her attor-
neys’ inadequate performances.
We have recognized that female genital mutilation is a
ground for asylum in the United States. See In re Kasinga, 21
I. & N. Dec. 357, 361 (BIA 1996); Benyamin v. Holder, 579
F.3d 970 (9th Cir. 2009); Mohammed, 400 F.3d at 795-96;
Abebe v. Gonzales, 432 F.3d 1037, 1042 (9th Cir. 2005) (en
banc). In fact, we found in Mohammed that a woman whose
attorney failed to present evidence that she had suffered
female genital mutilation in the past was prejudiced by her
attorney’s ineffective assistance. 400 F.3d at 801-03. Had
Teclezghi’s prior attorneys told her that female genital mutila-
tion is a ground for asylum in the United States and asked her
whether she had suffered this brutal experience, she undoubt-
edly would have told them that she had. Thus, I believe the
outcome would have been different. At the very least, Teclez-
ghi has satisfied her burden of showing that the outcome may
have been different. Id. at 793-94. Therefore, Teclezghi was
prejudiced by her attorneys’ failure to perform with sufficient
competence and should have prevailed on her ineffective
assistance of counsel claim.
II. Equitable Tolling
Because Teclezghi suffered ineffective assistance of coun-
sel, the panel majority should have tolled the deadline to file
her motion to reopen until she definitively discovered her
prior counsels’ ineffective assistance. See Singh, 491 F.3d at
1096. The panel majority’s refusal to toll the deadline con-
flicts with our precedent in Iturribarria v. INS, 321 F.3d 889(9th Cir. 2003) and Wenqin Sun v. Mukasey, 555 F.3d 802TECLEZGHI v. HOLDER 297
(9th Cir. 2009). The panel majority correctly quoted Iturribar-
ria for the rule that equitable tolling of deadlines is appropri-
ate when a petitioner is prevented from filing because of
“deception, fraud, or error.” 321 F.3d at 897, see Teclezghi,
378 F. App’x at 618. However, the panel majority only dis-
cusses cases of attorney deception and fraud, but not cases
involving attorney error, such as in Wenqin Sun. Id. In Wen-
qin Sun, we found that a lawyer’s innocent legal error may
equitably toll a motion to reopen deadline. 555 F.3d at 805-
06. Specifically, this court stated that “equitable tolling . . .
applies when a petitioner acts promptly after discovering
counsel’s error.” Id. In this case, Teclezghi’s attorneys’ fail-
ure to inquire about whether she had suffered female genital
mutilation were errors. Thus, the panel majority should have
equitably tolled her deadline for filing a motion to reopen and
determined whether Teclezghi acted promptly after discover-
ing her previous counsels’ errors.
III. Conclusion
The panel majority fails to recognize that most political
asylum applications are intensely personal, often painful, and
may involve questions of sexual torture, rape, and humilia-
tion. It is entirely expected that clients may not want to read-
ily reveal such circumstances to their attorneys. It is precisely
because the subject matter of an asylum claim based on
female genital mutilation is so intensely personal and our
immigration system so complex that an attorney has a special
responsibility to adequately explain to her female clients their
rights to asylum and diligently investigate all grounds for
relief. The panel majority’s decision allowing attorneys to
forego investigating intensely personal facts in an asylum
claim diminishes the attorney’s role in the asylum process.
Our precedent tells us that competent attorney performance
requires more. I believe that our court should instill a greater
sense of professional responsibility in attorneys who represent
asylum seekers. Accordingly, I dissent from the denial of
rehearing en banc.