UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ MAGDALENA ESTEBAN-MARCOS; PEDRO JOSE PATROC IN, a/k/a Pedro Jose Petrosenio; ESTEBAN JOSE PATROCIN, a/k/a Esteban Jose Petrosenio, Petitioners,

v. WILLIAM P. BARR, United States Attorney General, Respondent. No. 19-9561 (Petition for Review)

_________________________________ ORDER AND JUDGMENT *

_________________________________ Before BRISCOE , BACHARACH , and McHUGH , Circuit Judges.

_________________________________ Petitioners Magdelena Esteban-Marcos an d her sons, Pedro Jose Patrocin and Esteban Jose Patrocin, all of whom are Gu atemalan nationals, se ek review of the Board of Immigration Appeals’ (BIA) decision denying their motion to reopen

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### July 8, 2020 Christopher M. Wolpert Clerk of Court2 removal proceedings. For the reasons expl ained below, we deny their petition for review.
I Ms. Esteban-Marcos entere d the United States in 2003 , followed by her sons in 2007. In April 2007, the government char ged petitioners with entering this country without inspection or parole. See 8 U.S.C. § 1182(a)(6)(A)(i ). They conceded the charges but applied for asylum, restri ction on removal, and relief under the Convention Against Torture (CAT). Thro ugh counsel, they appeared before an immigration judge (IJ) and introduced eviden ce that they had lived difficult lives in Guatemala. Petitioners are Mayans who speak Kanjobal, and Ms. Esteban-Marcos was hated by others who appare ntly thought her father wa s a guerrilla fighter. Also, one of her sons was born with a genetic condition that required multiple surgeries. Based on this evidence, their attorney clai med they were persecuted in Guatemala and had a well-founded fear of future pers ecution because they were members of a particular social group: “i ndividuals who are of Mayan descent, who speak the . . . K[a]njobal language, who do no t have access to adequate care for thei r children based upon rare genetic defects, compounded with the fact that there are financial difficulties and [no] access to adequate care in the commun ity.” Admin. R. at 1067. The IJ denied relief and ordered petit ioners removed to Guatemala. The IJ determined that Ms. Esteban-Marcos’s asyl um claim was untimely and her sons were not eligible for asylum becau se their particular social group was not cognizable, any economic disadvantage they experienced was not sufficient to constitute past3 persecution, there was no nexus between th e inadequate medical care in Guatemala and a statutory protected ground for relief, and they lacked a well-founded fear of persecution. 1 Based on these findings, the IJ concl uded that petitioners also failed to meet the more stringent standards for rest riction on removal. Additionally, the IJ denied CAT relief because there was no evid ence petitioners would be tortured by or with the acquiescence of th e Guatemalan government. Through the same counsel, pe titioners appealed to the BIA, which affirmed the IJ’s decision. Petitioners did not seek judi cial review. Instead , still represented by the same attorney, th ey requested and received successi ve annual administrative stays of removal from 2014 until the government de nied a stay on February 12, 2019. At that point, petitioners reta ined new counsel and moved the BIA to reopen their removal proceedings. The motion to reope n, which petitioners filed on March 5, 2019, claimed previous c ounsel rendered ineffective assistance and there were materially changed conditions in Guat emala warranting reopening their case. 2 The BIA denied the motion to reopen as untimely, ruling that the deadline for filing the motion was September 12, 2013. The BIA recognized the deadline could be equitably tolled based on ineffective assi stance of counsel, but it concluded that petitioners failed to show due diligence in pursuing th eir case. The BIA reasoned

1 Although the sons were ri ders on Ms. Esteba n-Marcos’s applications, the IJ separately evaluated their as ylum claims on the merits. See Admin. R. at 860.

2 Petitioners also sought sua sponte reopening, but the BIA denied their request. This ruling is not before us.4 that they provided no evidence or explanati on indicating when they learned of former counsel’s alleged ineffectivenes s, what efforts they made to discover it, or what they did to reopen their case upon learning of it. The BIA also observed that, although the deadline was inapplicable to a motion to reopen based on changed country conditions, petitioners’ evidence did not es tablish materially worse conditions in Guatemala since the IJ’s removal heari ng—it reflected mistreatment and violence against indigenous women that had existed in Guatemala for decades. Accordingly, the BIA denied the motion to reopen. Peti tioners subsequently filed this petition for review.
II “We review the BIA’s decision on a motion to reopen only for an abuse of discretion. The BIA abuses its discre tion when its decision provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summar y or conclusory statements.” Maatougui v. Holder , 738 F.3d 1230, 1239 (10th Cir. 2013) (b rackets and internal quotation marks omitted). “[M]otions to reopen immigra tion cases are plainl y disfavored, and [non-citizens] bear[] a heavy burden to show the BIA abused its discretion.” Id. (brackets and internal quotation marks omit ted). To warrant reopening within the BIA’s discretion, a non-citizen must present new evidence “demonstrat[ing] that if proceedings before the IJ were reopened, with all the attendant delays, the new evidence offered would likely cha nge the result in the case.” Id. at 1240 (brackets and internal quotation marks omitted).5 A motion to reopen must be filed within 90 days of the date of entry of a final order of removal. 8 U.S.C. § 1229a(c)(7)( C)(i). The order of removal here became final on June 14, 2013, so the 90-day period for filing the motion expired on September 12, 2013. Petitioners filed th eir motion to reopen on March 5, 2019— some five and a half year s late. Thus, the motion wa s untimely. Nonetheless, petitioners contend they are en titled to equitable tolling b ecause their former counsel rendered ineffective assistan ce. They also contend the deadline did not apply because they established materially change d conditions in Guatemala. We consider these contentions in turn.
A. Equitable Tolling Due to Ineffective Assistance Ineffective assistance of counsel ma y equitably toll the period for filing a motion to reopen if a non-citizen “demonstr ate[s] not only that [her] constitutional right to due process has been violated by the conduct of counsel, but that [she] has exercised due diligence in pur suing the case during the peri od [she] seeks to toll.” Mahamat v. Gonzales , 430 F.3d 1281, 1283 (10th Cir. 2005) (internal quotation marks omitted). “To determine whether tolling is appropriate , a simple cursory comparison of the date of filing and the re gulatory time line for filing motions is not enough. Specifically, the BIA must revi ew [the non-citizen’s] due diligence along with [her] attempts to comply with the BIA’s requirements detailed in Matter of6 Lozada [, 19 I. & N. Dec. 637 (BIA 1988)].” Galvez Pineda v. Gonzales , 427 F.3d 833, 838 (10th Cir. 2005) (brackets and internal quotation marks omitted). 3 Here, the BIA assumed without deci ding that former counsel rendered ineffective assistance that prejudiced petiti oners’ case. But the BIA determined that petitioners failed to show du e diligence because they fa iled to explain when they learned of former counsel’s alleged ineffe ctiveness or what they did to discover it between the time of the IJ’s hearing in 201 2 and the time they filed their motion to reopen in 2019. Petitioners assert it is evident from their motion to reopen that they discovered the alleged ineffective assistan ce after the government denied their stay request on February 12, 2019, at which point they promptly hired new counsel, who told them less than two week s later that former counsel was ineffective. Their new counsel then complied with th e procedural requirements of Lozada and filed the motion to reopen on March 5, 2019. Petiti oners insist they did not know former counsel was ineffective until their current counsel told them. But equitable tolling is only “appropriate up to the point at which [petitioners] knew or should have kn own of prior counsel’ s ineffectiveness.” Galvez Pineda , 427 F.3d at 838. Ms. Esteban- Marcos’s affidavit, which she attached to the motion to reopen, suggests she knew former counsel was ineffective at the time of the IJ

3 In Matter of Lozada , the BIA set forth the pr ocedural requirements for bringing a claim of ineffectiv e assistance of counsel: 1) an affidavit detailing the agreement with counsel, 2) notice to counsel describing the allega tions and providing an opportunity to respond, and 3) a co mplaint filed with th e proper disciplinary authority or an explanation why no compla int was filed. 19 I. & N. Dec. 637, 639 (BIA 1988).7 hearing in 2012, and perhaps earlier. Sh e states that former counsel “took [her] asylum case in the direction he wanted to[] and never consulted or helped [her] understand what [she] needed to understand on [her] case.” Admin. R. at 121. It further states that she “was never brave enough to fire him because [she] had already invested too much money on him and [she] felt that if [she] changed attorneys it could jeopardize [her] case.” Id. at 122. Moreover, in petitioners’ motion to reopen, they argued that former c ounsel was ineffective in se eking relief based on their membership in a particular social group rather than their race. Th ey also faulted him for focusing on the son’s medical conditi on, his limited treatment options in Guatemala, and the economic hardship they faced, rather than ordering a psychological exam for Ms. Esteban-Marcos and eliciting testimony from her about a sexual assault she suffered and the kidnapping of her da ughter. But all of these facts were known to petitioners at the time of the IJ’s hearing in 2012, and yet, despite knowing that former counsel argued as he did rather than as they wanted him to, they made no effort to pursue an ineffective- assistance claim until 2019. We cannot countenance such dilatory conduct when the basis for the ineffec tive-assistance claim would have been apparent to them at the time of the hearing before the IJ. See Maatougui , 738 F.3d at 1244 (upholding finding th at petitioner failed to exercise due diligence where she was aware of the alleged errors that made up her ineffectiveassistance claim and could have taken steps to assert her claim but she waited to raise it in an untimely motion to reopen).8 Indeed, petitioners, knowing that form er counsel unsuccessfully pursued theories with which they di sagreed, allowed him to adva nce those same theories on appeal to the BIA without raising any conc erns. They then permitted former counsel to continue requesting success ive stays of removal until the government denied their request in 2019. It was not until that point—more than five years after the filing deadline and some seven years after the IJ’s hearing—that they finally filed their motion to reopen raising concerns that they had at the time of the IJ’s hearing in 2012. “Removable aliens are not permit ted to delay matters by pursuing multiple avenues of relief seriatim when no reason suggests why they c ould not be pursued simultaneously.” Galvez Pineda , 427 F.3d at 839. If nothing else, it was petitioners’ burden to explain why they did not consult w ith another attorney sooner. But as the BIA observed, they provided no such explanation. Petitioners insist they need not inve stigate whether former counsel was ineffective. But they do not dispute that tolling is only a ppropriate until they knew or should have known of the alleged ineffectiven ess. The record indicates they should have known at the time of the IJ’s hearing in 2012 that former coun sel failed to raise the arguments they want ed him to raise. Petitioners also contend the BIA erred by simply comparing the deadline for filing the motion to reopen with the date they filed it and concluding that it was untimely. They suggest we should remand, as we did in Riley v. INS , 310 F.3d 1253 (10th Cir. 2002), because the BIA failed to adequately analyze their diligence. In Riley , we remanded because the en tirety of the BIA’s analys is was to note when the9 non-citizen learned of the BIA’s decision and when he filed his motion to reopen years later, without analyzi ng the due diligence issue. See id. at 1257-58. Here, by contrast, the BIA observed that petitioners did not provide any in formation reflecting what they did to discover former counsel’s alleged ineffectiveness between the time of their hearing and the time they file d the motion to reopen. The BIA also recognized that they failed to specify when they discover ed the deficient performance or what they did to reopen their case upon l earning it was deficient. Thus, unlike in Riley , the BIA here recognized th e possibility of equitable tolling if petitioners had demonstrated that they acted with due d iligence, and it explained why it concluded they failed to do so. Th ere is no need for additiona l findings on this issue To the extent petitioners assert they were denied due process by the BIA’s “conclusory statements” denying their mo tion to reopen, Pet’r Br. at 33, their argument “is just a quarrel about the level of detail required in the BIA’s analysis, not a colorable due process claim,” Alzainati v. Holder , 568 F.3d 844, 851 (10th Cir. 2009). “The BIA is not requi red to write an exegesis on every contention. What is required is that it consider the issues raised, and a nnounce its decision in terms sufficient to enable a review ing court to perceive that it has heard and thought and not merely reacted.” Maatougui , 738 F.3d at 1242-43 (brackets and internal quotation marks omitted). The BIA’s analysis here is adequate to permit our review. Moreover, the record does not support petitioners’ contention that the BIA failed to consider eviden ce they submitted with their motion to reopen. The BIA considered the evidence but concluded that it did not explain what efforts they made10 to pursue their ineffe ctive-assistance claim. The ev idence does reflect that present counsel acted to comply with Lozada after the government deni ed a stay in February 2019, but it does not reflect any effort to pursue the cl aim before then, despite petitioners’ knowledge of the factual basis for the ineffective-assist ance claim at the time of the IJ hearing in 2012. As not ed above, Ms. Esteban-Marcos’s affidavit states that she told former counsel that she and her fa mily were persecuted because of their race and he failed to s eek asylum on that basis. See Admin. R. at 121-22. It also states that she did not fire him becau se she did not want to “jeopardize [her]
case.” Id. at 122. Given this evidence, the BIA did not abuse its discretion in denying the motion to reopen for lack of due diligence.
B. Changed Conditions We next consider petitioners’ conten tion that changed country conditions exempt them from the 90-day deadline for f iling a motion to reopen. Under 8 U.S.C. § 1229a(c)(7)(C)(ii), “[t]here is no time limit on the filing of a motion to reopen if . . . [it] is based on changed country conditi ons arising in . . . the country to which removal has been ordered, if such eviden ce is material and was not available and would not have been discove red or presented at the pr evious proceeding.” “[A] significant increase in the level of pe rsecution constitutes a material change in country conditions for purposes of 8 U.S.C. § 1229a(c)(7)(C ),” and “the BIA abuses its discretion when it fails to assess and consider a petitioner’s evidence that the persecution of others in his protected category has substa ntially worsen ed since the initial application.” Qiu v. Sessions , 870 F.3d 1200, 1204-05 (10th Cir. 2017).11 Petitioners contend the BIA ignore d evidence of significantly worsened conditions in Guatemala for indigenous women since their in itial application for relief, and particularly since 2018. Petitioners reference nearly 700 pages of articles, which they contend “report[] a significan t increase in persecu tion of indigenous persons of Mayan descen t.” Pet’r Br. at 27. But the only specific evid ence they cite is part of a 2015 report sta ting that the mishandling of so cial conflicts “has worsened the situation faced by human rights defe nders, community leaders and indigenous populations.” Admin. R. at 269. They al so cite part of anot her report published in 2015 noting that in recent y ears, the weakened national police caused a worsening security situation. This evidence does not reflect a significant increase in the persecution of Mayans or Mayan women in Guatemal a since petitioners’ initial application for relief or sin ce the IJ hearing in 2012. To be sure, the evidence documents a long history of violence towa rd Mayan women, but the BIA did not ignore this evidence. Rather, the BIA an alyzed country repor ts that generally described the violence and mistreatment of indigenous Guat emalans. The BIA observed that the evidence reflected ongoing “mistreatment and violence in [Guatemala] for decades,” which “was a seri ous problem, even at the time of [the 2012] hearing.” Id. at 4 (internal quotation marks omitted). And because of the continuing nature of this violence, the BI A concluded there was insufficient evidence of a material change in country conditions. The record supports this conclusion, and thus, the BIA did not abuse its discretion in denying the motion to reopen based on changed country conditions.12 III Accordingly, the petition for review is denied. Entered for the Court
Carolyn B. McHugh Circuit Judge