                                                                                FILED
                                                                    United States Court of Appeals
                                                                            Tenth Circuit

                                       PUBLISH                             August 19, 2014
                       UNITED STATES COURT OF APPEALS                   Elisabeth A. Shumaker
                                                                            Clerk of Court
                                  TENTH CIRCUIT




    ALBERTO MARTINEZ MOLINA;
    CRISTINA RAMIREZ RIVERA,

                Petitioners,
    v.                                                       No. 13-9573
    ERIC H. HOLDER, JR., United States
    Attorney General,

                Respondent.


               PETITION FOR REVIEW OF FINAL DECISION
            ISSUED BY THE BOARD OF IMMIGRATION APPEALS


Jennaweh Leyba, Joseph Law Firm, P.C., Aurora, Colorado, for Petitioners.

Stuart F. Delery, Assistant Attorney General, Carl McIntyre, Assistant Director,
and Jeffrey J. Bernstein, United States Department of Justice, Office of
Immigration Litigation, Washington, D.C., for Respondent.


Before HARTZ, McKAY, and BACHARACH, Circuit Judges. 1


BACHARACH, Circuit Judge.


1
       The Court determined that oral argument would not provide material assistance in
the determination of this appeal. See 10th Cir. R. 34.1(G). The case is therefore ordered
submitted without oral argument.
       A husband and wife, Mr. Alberto Martinez Molina and Ms. Cristina Ramirez

Rivera, are Mexican citizens subject to final orders of removal from the United States.

After an immigration judge declined to cancel their removal orders, Mr. Martinez and

Ms. Ramirez filed a motion to reopen based on ineffective representation of counsel.

With the motion, Mr. Martinez and Ms. Ramirez submitted evidence that they had

resided in the United States in 1998. The Board of Immigration Appeals denied the

motion, reasoning that the couple had not shown prejudice because the evidence that they

submitted: (1) could not overcome discrepancies in their testimony, and (2) was the same

or substantially similar to the evidence considered by the immigration judge. The

spouses filed a petition for review, arguing that: (1) the Board abused its discretion in

rejecting their claim for ineffective representation, and (2) the immigration judge failed to

consider the entire record.

       For Ms. Ramirez, we affirm. The Board acted within its discretion in rejecting her

ineffective-representation claim, and Ms. Ramirez did not exhaust her claim involving

failure of the immigration judge to consider the entire record.

       For Mr. Martinez, we remand to the Board. Mr. Martinez did not exhaust his

claim involving failure to consider the entire record. But he did exhaust his

ineffective-representation claim, and the Board abused its discretion when it mistakenly

concluded that the newly submitted evidence was the same or substantially similar to the

evidence considered by the immigration judge.

                                              2
I.    1998: An All-Important Year

      The government began removal proceedings on October 16, 2008. Though the

spouses conceded removability, they applied for cancellation of removal. To obtain this

relief, the couple had to prove continuous residence in the United States from October 16,

1998, to October 16, 2008 (with allowances for certain temporary departures). See

8 U.S.C. § 1229b.

      At a 2008 hearing, the couple’s first attorney (Gita Kapur) submitted documentary

evidence, which included: (1) paystubs showing that Mr. Martinez had worked in the

United States in 1998, and (2) records showing that the couple’s minor child had been

vaccinated in the United States throughout 1998.

      The couple then relocated and obtained a second hearing with new counsel (David

Senseney). At the second hearing, Mr. Senseney presented evidence of residence from

1999 to 2010, but he did not present any evidence from 1998 or refer to the 1998

evidence previously submitted by Ms. Kapur. The immigration judge denied relief,

relying in part on discrepancies in the testimony. But the immigration judge also relied

on a factual finding that the documentary evidence had not “address[ed] [Mr. Martinez’s]

presence in October of 1998.” R. at 418.

      Mr. Senseney appealed to the Board of Immigration Appeals, but did not

challenge any of the immigration judge’s rulings. Without any argument based on the

immigration judge’s decision, the Board dismissed the appeal.

                                            3
       Thereafter, the couple hired a third attorney (Jennaweh Leyba), who filed a motion

to reopen based on ineffective representation of counsel. The couple argued that their

second attorney, Mr. Senseney, had performed ineffectively by failing to submit evidence

of continuous residence since October 16, 1998. The Board denied the motion, stating

that the evidence “regarding [the couple’s] physical presence in the United States

between 1997 and 1998 appear[ed] to be the same or substantially similar to the evidence

considered by the Immigration Judge.” Id. at 3.

II.    The Petitioners’ Arguments & Our Conclusions

       In their petition, the spouses argue that the Board should have granted the motion

to reopen based on:

       ●       the immigration judge’s failure to consider all of the evidence, including
               the evidence submitted by their first attorney (Ms. Kapur) at the 2008
               hearing, and

       ●       ineffective representation.

       We decline to consider the couple’s first argument because we lack jurisdiction.

On the couple’s second argument, we affirm the Board’s decision with respect to

Ms. Ramirez, finding no abuse of discretion. With respect to Mr. Martinez, however,

we remand for clarification regarding whether his testimonial discrepancies provide

a sufficient basis for denial of relief.

III.   Exhaustion




                                              4
       We must address a threshold issue: jurisdiction. In immigration cases, our

jurisdiction extends only to issues that have been exhausted before the Board of

Immigration Appeals. 8 U.S.C. § 1252(d)(1); see Ribas v. Mukasey, 545 F.3d 922,

930-31 (10th Cir. 2008).

       The couple submits two issues for our review: (1) failure of the immigration judge

to consider the entire record, and (2) ineffective representation of counsel. The first issue

was not raised in the couple’s motion to reopen or in any other document filed with the

Board of Immigration Appeals. Consequently, the argument is unexhausted; and without

exhaustion, we lack jurisdiction. See Akinwunmi v. INS, 194 F.3d 1340, 1341 (10th Cir.

1999) (per curiam) (stating that appellate jurisdiction was absent when an alien failed to

file a motion to reopen based on the legal theory later raised in our Court). The second

issue, however, was presented to and reviewed by the Board; thus, the second issue was

exhausted and subject to our jurisdiction.

IV.    Claims Involving Ineffective Representation of Counsel

       Mr. Martinez and Ms. Ramirez argue that: (1) their former counsel, Mr. Senseney,

ineffectively argued for cancellation of removal,2 and (2) a reasonable likelihood exists



2
        The couple also argues that Mr. Senseney failed to raise any material arguments
on appeal to the Board, “eliminat[ing] the possibility of future relief . . . based on the
merits of the case.” Appellant’s Opening Br. at 41. With regard to this argument,
however, the couple makes no attempt to establish a reasonable likelihood that the
outcome would have been different with the additional arguments. We therefore deem
this argument waived. See, e.g., United Transp. Union v. Dole, 797 F.2d 823, 827
                                              5
that, but for Mr. Senseney’s ineffectiveness, the outcome would have been different.

We agree for Mr. Martinez and disagree for Ms. Ramirez.

       A.     Right to Effective Representation

       Aliens in removal proceedings enjoy a Fifth Amendment right to effective

representation by their retained counsel. Tang v. Ashcroft, 354 F.3d 1192, 1196

(10th Cir. 2003). For a due-process claim based on ineffectiveness, an alien must show

that: (1) retained counsel was ineffective, and (2) the ineffectiveness resulted in a

“fundamentally unfair proceeding.” Id. A proceeding is “fundamentally unfair” only if it

causes prejudice to the alien. United States v. Aguirre-Tello, 353 F.3d 1199, 1207-09

(10th Cir. 2004). To establish prejudice, an alien must show a “reasonable likelihood”

that the outcome would have been different but for the attorney’s deficient performance.

Id.

       B.     The Abuse-of-Discretion Standard

       Because ineffective representation was raised in a motion to reopen, we review the

Board’s decision under an abuse-of-discretion standard. See Galvez Pineda v. Gonzales,

427 F.3d 833, 838 (10th Cir. 2005). The Board abuses its discretion when it fails to

provide a rational explanation, inexplicably deviates from established policies, lacks any

reasoning, or contains only conclusory explanations. Id. In contrast, the Board does not



(10th Cir. 1986) (failure to thoroughly develop arguments in a brief generally results in
waiver).
                                              6
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.” Infanzon v. Ashcroft,

386 F.3d 1359, 1362 (10th Cir. 2004).

       C.     The Couple’s Arguments

       Mr. Martinez and Ms. Ramirez argue that the Board relied on a mistaken belief

that the evidence accompanying the motion to reopen was the same or substantially

similar to the evidence considered by the immigration judge. According to the couple,

the motion-to-reopen evidence differed because it included documentation from 1998.

       We agree with respect to the evidence submitted on behalf of Mr. Martinez.

With respect to Ms. Ramirez, however, we find no abuse of discretion.

       D.     Mr. Martinez

       For Mr. Martinez, the immigration judge identified two inadequacies in the proof:

(1) testimonial inconsistencies regarding the duration of his residence in the United

States, and (2) the absence of any documentary evidence establishing his presence in

October 1998. Thus, we know that the immigration judge denied Mr. Martinez’s

application based, at least in part, on a perceived lack of evidence from October 1998.

       With his motion to reopen, Mr. Martinez submitted evidence from 1997 and 1998.

Nonetheless, the Board found that the newly submitted evidence “regarding [the

couple’s] physical presence in the United States between 1997 and 1998 appear[ed] to be

the same or substantially similar to the evidence considered by the Immigration Judge.”

                                              7
R. at 3. For Mr. Martinez, this finding is inaccurate because: (1) the motion to reopen

included his paystubs for a job in Colorado in October 1998,3 and (2) we know that the

immigration judge did not consider these paystubs based on her reference to “the absence

of any documentary evidence to prove entry in October of 1998.”4 These paystubs filled

a perceived gap in the evidence that had led the immigration judge to deny relief, and the

Board erred in concluding that the proffered evidence was the same or substantially

similar to the evidence relied on by the immigration judge.

         The resulting question is whether the Board’s error materially affected the

outcome. The Board partially relied on its erroneous belief in denying the motion to

reopen. See id. at 4 (“without a showing that the . . . evidence [accompanying the motion

to reopen] might have changed the result in their case, we do not find that any action or

inaction by prior counsel caused [the couple] prejudice”). But the Board also noted that

“[t]he Immigration Judge [had] based her decision, in large part, on the [couple’s]

discrepant testimony regarding their physical presence in the United States.” Id. at 3-4.

         In light of discrepancies in the testimony, the Board might have reached the same

outcome even if the immigration judge had not relied on the absence of evidence from

October 1998. But, the Board might have reached a different result if it determined that

the immigration judge had weighed the discrepancies less heavily than the perceived


3
    R. at 205.
4
    Id. at 418.
                                               8
absence of evidence from October 1998. Because we do not know whether the error

affected the outcome, we must remand for further findings by the Board. See

Onwuamaegbu v. Gonzales, 470 F.3d 405, 411-12 (1st Cir. 2006) (remanding to the

Board of Immigration Appeals because the Court of Appeals could not determine

whether the Board abused its discretion by summarily affirming when the immigration

judge’s rationale was subject to “alternative interpretations”); see also Lam v. Holder,

698 F.3d 529, 536 (7th Cir. 2012) (remanding to the Board of Immigration Appeals when

the Court of Appeals concluded that the immigration judge had made an error and it was

unclear whether the immigration judge’s determination would stand without the error).

On remand, the Board should reconsider based on recognition that the October 1998

evidence was not considered by the immigration judge.

       E.     Ms. Ramirez
       For Ms. Ramirez, the Board denied relief based on: (1) the similarity between the

motion-to-reopen evidence and the evidence considered by the immigration judge, and

(2) discrepancies in her testimony. With her motion to reopen, Ms. Ramirez submitted

vaccination records, which purport to establish her presence in the United States in

February, March, April, June, and September 1998. R. at 208-09.5 But the vaccination


5
       The records show vaccinations of the child in the United States. According to the
couple, the records prove Ms. Ramirez’s presence in the United States on the theory that
in 1998, “she was the primary caregiver of [her] children.” Appellant’s Opening Br. at
39. For the sake of argument, we can assume that the immunization records conclusively
establish Ms. Ramirez’s presence in the United States during these months.
                                             9
records were already in the record. And without contrary evidence, we must assume that

the immigration judge reviewed the records when she denied Ms. Ramirez’s application.

See Batalova v. Ashcroft, 355 F.3d 1246, 1252 (10th Cir. 2004) (we presume that the

Board of Immigration Appeals thoroughly reviews the record before adopting or

affirming the decision of an immigration judge).

       The immigration judge said nothing to suggest a failure to consider the child’s

1998 vaccination records. Indeed, the judge made only one reference to Ms. Ramirez’s

documentary evidence. That reference involved her alleged entry date (1996), not her

presence in the United States in 1998. R. at 419.

       The Board did not abuse its discretion when it concluded that the motion-to-

reopen evidence from 1997-1998 was the same or substantially similar to the evidence

considered by the immigration judge.

V.     Conclusion
       We affirm the Board’s decision as it pertains to Ms. Ramirez and grant the petition

for Mr. Martinez. For his application, we remand and direct the Board to clarify whether

discrepancies in the testimony provide a sufficient basis for denial of relief.




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