F ILED United States Court of

Appeals Tenth Circuit 

### Octo ber 3 0 , 2 0 1 9 Elisabeth A. Shum aker Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
RIGOBERTO FLORES-CASTILLO,

Petitioner,

v. W ILLIAM P. BARR, United States Attorney General, Respondent. No. 19-9512 (Petition f

or Review)

ORDER AND JUDGMENT *

Bef ore MATHESON , McKAY , and BACHARACH , Circuit Judges. In January

2015, the Departm ent of Hom eland Security

inf orm ed Petitioner Rigoberto Flores-Castillo, a native and citizen of Mexico, that it intended to reinstate a prior order of

rem oval against him . Petitioner claim ed a f ear of returning to Mexico, and an asy l um

of f icer interviewed him

to determ ine if

he was entitled to asy lum or protection under the Convention Against Torture. The asy lum of f icer concluded that his testim ony ,

* Af ter exam ining the brief

s and the appellate record, this panel has determ ined unanim ously

to honor the parties’ request f or a decision on the brief

s without oral argum ent. See Fed. R. App. P. 34(f ); 10th Cir. R. 34.1(G). The case is theref ore subm itted without oral argum ent. This order and judgm ent is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It m ay be cited, however, f

or its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.while credible, did not establish a reasonable f ear of either persecution based on a protected characteristic or torture carried out by or with the acquiescence of a public of f icial. The asy lum

of f i cer’s decision was af

f irm ed by an im m igration judge f

ollowing a reasonable-f

ear hearing at which Petitioner was represented by counsel. Because the im m igration judge agreed with the asy lum of f i cer, his decision was not appealable to the Board of Im m igration Appeals, see 8 C.F.R. § 1208.31(g)(1), but it was reviewable in this court as a “f inal order of

rem oval,” 8 U.S.C. § 1252(a)(1), (5). However, “[ d]ue to an error and m isunderstanding” between the two attorney s who were representing Petitioner, “while a Petition f or Review of

the adverse Novem

ber 20, 2018 decision of

the im m igration judge had been prepared, sam e was not f iled with the Court” within the thirty -day f

iling deadline. (Petitioner’s Br. at 7.) Realizing that he had m issed the f iling deadline, lead counsel f iled a m otion to the imm igration judge in which he conceded that he had provided inef f ective assistance and asked the im m igration judge to “rescind and reissue” the adverse decision so the f iling deadline would be re-triggered, as “this avenue appears to be the only m echanism

f or reinstating the due process rights of Mr. Flores Castillo.” (BIA R. at 30, 34.) The imm igration judge denied the m otion on a one-page preprinted f orm , checking the box next to “No good cause has been established f or the above request” and providing a short handwritten explanation: “The applicant has not established that the Court has authority to rescind and reissue its order or jurisdiction over this m atter. The applicant has also not

-2-shown any

error of f act or law in the Court’s decision.” ( I d. at 2.) Petitioner seeks review of the imm i gration judge’s denial of his m o tion to rescind and reissue the prior adverse decision. W e r eview the denial of the m otion to rescind f

or an abuse of

discretion. L ujan-Jimenez v. Lynch , 643 F. App’x 737, 740 (10th Cir. 2016). The agency

“abuses its discretion when its decision provides no rational explanation, inexplicably

departs f rom established policies, is devoid of any reasoning, or contains only s um m ary

or conclusory

statem ents.” Q iu v. Sessions , 870 F.3d 1200, 1202 (10th Cir. 2017) (internal quotation m arks om itted). “Moreover, com m itting a legal error . . . is necessarily

an abuse of

discretion.” Id. (internal quotation m arks and brackets om itted). As an initial m atter, the governm ent concedes that the im m i gration judge

com m itted a legal error when he concluded that he lacked the authority or jurisdiction to rescind and reissue his prior decision. “An Im m igration Judge m a y upon his or her own

m otion at any

tim e, or upon m otion of

the Service or the alien, reopen or reconsider any case in which he or she has m ade a decision, unless jurisdiction is vested with the Board of Im m i gration Appeals.” 8 C.F.R. § 1003.23(b)(1). Because the im m igration judge agreed with the asy lum

of f icer’s reasonable-f

ear determ i nation in this case, jurisdiction never vested with the Board of Im m igration Appeals, s ee 8 C.F.R. § 1208.31(g)(1), and thus the imm igration judge retained the authority and jurisdiction to reopen and reissue his prior decision in this case. Moreover, the Attorney General has expressly concluded that the agency ’s “discretion to reopen rem oval proceedings includes the power to

-3-consider claim s of inef f ective assistance of

counsel based on conduct of counsel that occurred af

t er a f inal order of rem oval had been entered.” Compean , 25 I. & N. Dec. 1, 3 (Att’y Gen. 2009). Indeed, in another case in which an im m igration petitioner “allege[ d] that his counsel prevented him

f rom f i ling a tim ely

petition f or review,” the governm ent argued that the petitioner could not pursue a habeas rem edy b ecause “the statutory m otion to reopen process is an adequate and ef f ective substitute f

or habeas corpus.” Luna v. Holder , 637 F.3d 85, 94, 96 (2d Cir. 2011). The writ of habeas corpus has not been suspended, the governm e nt argued in Luna , because im m igration petitioners who are initially deprived of

their right to access the courts by the inef f ective assistance of

counsel or governm ent-created circum stances can ask the agency to reissue the f

inal order of

rem oval, restarting the f

iling deadline so that the petitioner m ay obtain judicial review of the agency ’s rem o val decision. Id. at 95–98. The Second Circuit accepted this argum ent in Luna , thereby

rejecting the petitioners’ Suspension Clause argum ent, but it “em phasize[ d]” that the agency ’s authority to restart the f

iling deadline by

reissuing the

rem oval decision was “essential to [ the court’s] holding.” I d. at 98. “If

the Attorney General later withdraws the BIA’s authority to consider claim s that inef f ective assistance or governm ental interf

erence prevented an alien f rom f iling a tim ely

petition f o r review, then the statutory

m otion to reopen process would be m eaningf ully ‘m ore lim ited’ than habeas review and theref ore an inadequate substitute f or habeas.” Id. Thus, it is essential

-4-that the agency recognize its authority

—and responsibility

—to use the m otion-to-reopen process to reissue a f

i nal rem o val decision where inef f e c tive assistance of counsel or governm ent interf

erence prevented the petitioner f rom f iling a tim e ly

petition f or review. “[ T]he m otion to reopen process [ i]s ‘an im p ortant saf

e guard intended to ensure a proper and lawf ul disposition of

imm igration proceedings.’” Id. at 95 (quoting Kucana v. Holder , 558 U.S. 233, 242 (2010) (internal quotation m arks om i tted)). The im m i gration judge’s f ailure to recognize his authority to grant the requested relief in this case constituted a f

undam ental error of

law. Nevertheless, the governm ent argues that this error was harm less because we can af f irm the im m igration judge’s denial of Petitioner’s m o tion to reissue on the alternative basis that Petitioner f

ailed to establish good cause f or his m otion. The governm ent argues that the im m igration judge correctly held that Petitioner f

ailed to establish good cause f or rescinding and reissuing the prior decision because (1) reasonable-f e ar proceedings are intended to be expedited and ef f icient, (2) m otions to reopen are disf avored, and (3) Petitioner f

ailed to com

ply with the Board of Im m igration Appeals’ procedural requirem ents f

or pursuing an inef

f ective-assistance-of

-counsel claim . Notably , none of these reasons were relied on, or even hinted at, by the imm igration judge. As we have repeatedly

stated, “we ‘m ay

not uphold an agency

action on grounds not relied on by the agency .’” Lujan-Jimenez , 643 F. App’x at 742 (quoting Mickeviciute v. INS , 327 F.3d 1159, 1163 (10th Cir. 2003). “‘Because an agency has a duty

not only to reach an

-5-outcom e, but to explain that outcom e, we intrude on the agency ’ s authority by supporting a result reached by

the agency

with reasoning not explicitly relied on by

the agency .’” Id. (ellipsis om itted) (quoting Mickeviciute , 327 F.3d at 1165). The governm ent cannot rely on af ter-the-f act rationalizations to attem pt to bolster the imm igration judge’s contem porary decision. Id. The im m igration judge’s only com m ent on the m erits of Petitioner’s m otion was a conclusory

statem ent that Petitioner had not established good cause f or reissuing the prior decision because he had “not shown any error of f act or law” in that underly ing decision. (BIA R. at 2.) However, this statem ent f ailed to address the issue that was actually bef ore the im m igration judge—whether, as in Lujan-Jimenez , the agency should “reissue its

rem oval order and thus rem edy the inef f ective assistance of

counsel” that occurred when counsel f ailed to f ile a tim ely

petition f or review, restarting the f iling period so Petitioner would not be unf

airly deprived of

his right of access to the courts. 643 F. App’x at 741. An agency

“abuses its discretion when its decision provides no rational explanation, inexplicably

departs f rom established policies, is devoid of any reasoning, or contains only s um m ary

or conclusory

statem ents.” Q iu , 870 F.3d at 1201 (internal quotation

m arks om itted). The im m igration judge’s decision here was both conclusory and devoid of any rational explanation as to why Petitioner should not receive the requested relief

-6-based on counsel’s concededly inef f ective assistance. 1 W e will not af f irm o n this inadequate alternative basis. W e theref ore G R ANT the petition f

or review and REMAND this m a tter to the imm igration judge f

or f urther proceedings. In so doing, we express no opinion on the ultim ate m erits of

this case. Entered f or the Court

Monroe G. McKay Circuit Judge

1 The im m i gration judge’s conclusory statem ent m ight arguably have been intended to be a com m entary on whether Petitioner could satisf y the second prong of

the inef f ective-assistance test by

showing that he was prejudiced by counsel’s f

ailure to f ile a tim ely petition f or review. However, the im m igration judge did not “explicitly rel[ y ] on” this reasoning, and it would be inappropriate f o r us to insert our own reasoning to f ill in the gaps in the agency ’ s explanation. Mickeviciute , 327 F.3d at 1165. W e also express som e doubt as to whether a petitioner who was prevented f rom f i ling a tim ely p etition f

or review by the inef f ective assistance of

counsel is required to m ake a separate showing of prejudice in order to obtain relief

. See Roe v. Flores-Ortega , 528 U.S. 470, 484 (2000) (holding in crim inal habeas context that counsel’s f ailure to f ile a tim ely

appeal is presum ptively prejudicial, with no need f or a “f urther showing f

rom the def endant of the m erits of his underly i ng claim s”); Dearinger ex rel. Volkova v. Reno , 232 F.3d 1042, 1045 (9th Cir. 2000) (extending Flores-Ortega ’s reasoning to im m igration context). B ut see Hernandez v. Reno , 238 F.3d 50, 57 (1st Cir. 2001) (declining to incorporate FloresOrtega ’s “prejudice per se notion” into context of civil deportation proceedings). -7-