UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_________________________________

GURJANT SINGH, 

 Petitioner,

v.

MERRICK B. GARLAND,

Attorney General of the United States, 

 Respondent.

Nos. 19-9574 & 22-9505

(Petitions for Review)

_________________________________

ORDER AND JUDGMENT*

_________________________________

Before PHILLIPS, McHUGH, and ROSSMAN, Circuit Judges.

_________________________________

Gurjant Singh, a native and citizen of India, seeks review of a decision by the 

Board of Immigration Appeals (BIA) that dismissed his appeal from a removal order 

entered by an immigration judge (IJ). Singh also seeks review of the BIA’s denial of 

his motion to reopen his immigration proceedings. We deny review of the removal 

order. But we grant review of the order denying Singh’s motion to reopen because 

* After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially 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 doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

FILED

United States Court of Appeals

Tenth Circuit

October 12, 2022

Christopher M. Wolpert

Clerk of Court

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the BIA relied on an incorrect legal standard to deny it, and we remand to the BIA for 

it to reconsider Singh’s motion under the correct legal standard.

I. Background

Singh entered the United States in 2018 without valid entry documents. The 

Department of Homeland Security (DHS) issued Singh a notice to appear in 

immigration court, charging him with removability under 8 U.S.C. 

§§ 1182(a)(6)(A)(i) and 1182(a)(7)(A)(i)(I). The notice to appear was dated 

September 27, 2018, and listed the date and time for Singh’s initial removal 

proceedings as “TBD.” No. 19-9574, Admin. R., vol. 2 at 505.

Singh initially appeared in immigration court on November 8, 2018. In the 

subsequent immigration proceedings Singh “acknowledge[d] the receipt of a 

purported” notice to appear, id., vol. 1 at 76, but contended the notice was “legally 

faulty under [Pereira v. Sessions, 138 S. Ct. 2105 (2018)],” id. at 77. He also 

admitted the allegations in the notice and conceded the charges of removability. But 

he applied for asylum, withholding of removal, and protection under the Convention 

Against Torture (CAT), claiming members of the Congress Party in India persecuted 

him because they opposed his membership in the Shiromani Akali Dal (Mann) Party.

In connection with his application, Singh submitted a statement and some 

supporting documents. In his statement, Singh asserted members of the Congress 

Party attacked him three times. Singh claimed the first attack took place in May 

2017, when members of the Congress Party waited for him outside a temple and 

“started beating [him] and told [him] to leave [his political] party, otherwise, they 

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would kill [him].” Id., vol. 2 at 490. Singh claimed the second attack took place in 

November 2017, when members of the Congress Party followed him as he was riding 

his bike, “surrounded [him], and started beating [him]. They hit [him] with a hockey 

stick, a bat, and tore [his] clothes too. They dragged [him] on the road, and . . . 

pressed [his] throat too.” Id. Singh claimed the third attack happened in March 

2018, when members of the Congress Party kidnapped him as he was putting up 

posters for a drug addiction camp. He managed to escape when the car they put him 

in stopped for a railroad track, running away as the kidnappers drove after him and 

shot at him. Singh stated that he tried to make a complaint to the police “but they 

refused to write the complaint because they are under the influence of the ruling 

Congress Party.” Id. at 492.

One of the supporting documents Singh submitted purported to be a letter from 

a doctor. The letter claimed Singh had been admitted to the hospital for five days in 

May 2017 “with multiple injuries with contusion and bruises,” and again for six days 

in November 2017 “with multiple injuries by police torture.” Id., vol. 1 at 163.

At his merits hearing, Singh testified about the three alleged attacks. He stated 

that during the November 2017 attack, “[t]hey hit me on the nose and my nose was 

bleeding, and they hit me on the legs with the baseball bats, and they had dragged me 

on the road.” Id. at 99. Regarding the March 2018 attack, he stated:

[F]irst they beat us up, and then they put us in the car. And in the car, 

there was drugs in a packet and there were—there was money, a stack of 

money, and there was a revolver. And they said, come, join our party 

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and you’re going to sell these drugs, and this is a weapon so you have 

no fear, and then you would have more money coming in.

Id. at 106–07. Singh did not testify he had been hospitalized following any of the 

attacks. 

The IJ denied Singh’s asylum “claim based, in part, on an adverse credibility 

finding.” Id. at 2. The IJ found Singh lacked credibility for a few reasons. First, “at 

numerous times,” Singh “was unresponsive to the questions given to him.” Id. at 49. 

“Instead of answering the question, [Singh] wanted to basically state what he wished 

to answer and not the question given to him. That included questions by his counsel, 

questions by the Government, and also from the Court.” Id. Second, the IJ found 

Singh’s testimony about the weapons used in his alleged attacks to be inconsistent 

with his credible fear interview and his written statement. Third, the IJ found 

Singh’s testimony to be inconsistent with the doctor’s letter describing Singh’s 

injuries and hospitalization. And fourth, the IJ noted Singh did not mention seeing 

drugs and stacks of money in the car during the third alleged attack in his credible 

fear interview or his written statement. 

The BIA affirmed the adverse credibility finding because the IJ based it “on 

inconsistencies in the record.” Id. at 2. It discussed the letter “purportedly from a 

medical doctor in India who report[ed] that [Singh] was hospitalized twice due to 

injuries caused ‘by police torture’ for several days.” Id. at 3. And it observed that 

“in testimony at his removal hearing and in testimony at [his] credible fear interview, 

[Singh] omitted any reference to having sought medical treatment for injuries or 

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torture due to his encounters with the Congress Party members or with the Indian 

police.” Id. (citation omitted). The BIA then affirmed the IJ’s denial of Singh’s 

applications for asylum, withholding of removal, and CAT protection because Singh 

failed to meet his burden of proof with credible evidence.

Singh petitioned this court for review of the BIA’s order in case No. 19-9574. 

He also filed a motion with the BIA seeking to reopen his case, and he sought an 

abeyance in case No. 19-9574 pending the BIA’s adjudication of the motion to 

reopen. Singh based his motion to reopen on alleged ineffective assistance of 

counsel. The BIA denied Singh’s motion to reopen because Singh failed to show that 

the “discrepancies and omissions” that led to the dispositive adverse credibility 

determination were “linked to the performance of his prior attorney.” No. 22-9505, 

Admin. R., vol. 1 at 100. Singh petitions for review of the BIA’s denial of his 

motion to reopen in case No. 22-9505. We consolidated case No. 19-9574 and case 

No. 22-9505 by order dated February 9, 2022.

II. Discussion

A. The BIA’s Denial of Singh’s Application for Asylum, Withholding of 

Removal, and CAT Protection

1. Alleged Defects in the Notice to Appear

Under applicable regulations, “(1) the filing of a ‘charging document’ creates 

jurisdiction, (2) a charging document consists of a notice to appear, and (3) a notice 

to appear must include the date and time where practicable.” Lopez-Munoz v. Barr, 

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941 F.3d 1013, 1015 (10th Cir. 2019) (citing 8 C.F.R. §§ 1003.13, 1003.14(a),

1003.18). 

Singh preserves an argument that because the notice to appear failed to include 

the date and time of his removal proceedings, the IJ lacked jurisdiction to conduct 

them. But Singh concedes, as he must, that under our precedent such a defect does 

“not preclude jurisdiction.” No. 19-9574, Pet’r Opening Br. at 37 (citing 

Lopez-Munoz, 941 F.3d at 1015).

Singh argues that even if the defects in the notice to appear did not undermine 

the IJ’s jurisdiction, the removal proceedings still should have been dismissed due to 

the defects. Id. at 39 (citing Martinez-Perez v. Barr, 947 F.3d 1273, 1279 (10th Cir. 

2020). In Martinez-Perez, we observed that “the requirements relating to notices to 

appear are non-jurisdictional, claim-processing rules” and that “just as with every 

other claim-processing rule, failure to comply with that rule may be grounds for 

dismissal of the case.” 947 F.3d at 1278–79 (internal quotation marks omitted). But

Singh did not make this argument to the IJ or the BIA. 

Before the IJ, Singh argued the notice to appear was “legally faulty under 

Pereira,” and stated he “kn[e]w the [BIA’s] position on that.” No. 19-9574, 

Admin. R., vol. 1 at 77 (typeface normalized). Before the BIA, Singh contended that 

the IJ incorrectly stated that he acknowledged receipt of the notice to appear. Singh 

explained that in his proceedings before the IJ he “acknowledged having received a 

‘purported [notice to appear]’” that was legally faulty under Pereira, and he 

“acknowledged the [BIA’s] position in Matter of Bermudez-Cota, 27 I&N Dec. 441 

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(BIA 2018), but preserved that jurisdictional issue.” Id. at 10 n.1. He further 

explained he was preserving that same jurisdictional issue before the BIA, and 

“[s]hould a Petition for Review to the 10th Circuit be required,” he would make 

“detailed arguments attacking Bermudez-Cota and urging that court to fully follow 

Pereira.” Id.

1

 

Although Singh’s failure to present detailed arguments to the BIA left his 

position murky, the BIA concluded Singh “appear[ed] to challenge the Immigration 

Judge’s jurisdiction in light of Pereira.” Id. at 7 n.1. This is not the argument Singh 

advances in this court—namely, that the IJ should have dismissed the removal 

proceedings because the DHS failed to comply with a mandatory claims-processing 

rule. See No. 19-9574, Pet’r Reply Br. at 9 (“[T]his is a distinct argument from the 

jurisdictional questions implicated by Pereira . . . .”). Under our precedent, “[i]t is 

not enough to go through the procedural motions of a BIA appeal, or to make general 

statements in the notice of appeal to the BIA, or to level broad assertions in a filing 

before the Board.” Garcia-Carbajal v. Holder, 625 F.3d 1233, 1237 (10th Cir. 2010)

1 “In Pereira, the Court decided only whether a defective notice to appear had 

interrupted a noncitizen’s continuous presence in the United States.” Lopez-Munoz, 

941 F.3d at 1018. Pereira “did not address . . . whether a defect in the notice to 

appear would preclude jurisdiction over the removal proceedings.” Id. But various 

aliens, including the respondent in Matter of Bermudez-Cota, argued that under 

Pereira’s reasoning, failure to include the time and place of the hearing in a notice to 

appear rendered the notice “defective for all purposes” such that the notice could not 

“vest jurisdiction with the Immigration Judge.” 27 I. & N. Dec. at 443. As noted 

above, this court later “declined to treat Pereira as a limitation on an immigration 

judge’s jurisdiction.” Lopez-Munoz, 941 F.3d at 1018.

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(internal quotation marks omitted). Instead, “an alien must present the same specific 

legal theory to the BIA before he or she may advance it in court.” Id. Singh’s

presentation of an argument for dismissal based on the notice to appear was therefore 

insufficient to preserve the claims-processing argument he seeks to advance in this 

court. See id. at 1238 (“[P]resenting a conclusion or request for relief to the BIA 

isn’t enough to exhaust every potential argument for reaching that conclusion or 

winning that relief.”).

2. The IJ’s Alleged Bias

Singh argues the proceedings before the IJ failed to comport with due process 

because the IJ exhibited bias.

Aliens are “entitled to a full and fair removal hearing that comports with due 

process.” Lucio-Rayos v. Sessions, 875 F.3d 573, 576 (10th Cir. 2017). The right to 

a removal hearing that comports with due process includes the right to “a fair and 

impartial decision-maker.” Id. To prevail on his due process claim, Singh “must 

establish both that he was deprived of due process and that that deprivation 

prejudiced him.” Id. An IJ must recuse if (1) the IJ “has a personal, rather than a 

judicial, bias stemming from an extrajudicial source which resulted in an opinion on 

the merits on some basis other than what the immigration judge learned from . . .

participation in the case,” (2) the IJ’s judicial conduct demonstrates “such pervasive 

bias and prejudice” that it amounts to “bias against [the] party,” or (3) “the IJ has an 

inherent bias.” Id. (internal quotation marks omitted). We review Singh’s due 

process claim de novo. Id.

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Singh argued to the BIA that “the IJ was set on determining [Singh] lacked 

credibility from the beginning, insisting on construing not only [Singh’s] statements, 

but also Counsel’s questions as demonstrating a lack of credibility.” No. 19-9574, 

Admin. R., vol. 1 at 11. To support this argument, Singh cited a single exchange 

where he suggested his father had died from persecution. See id. at 90 (“[Y]our 

father’s deceased. How did he die? . . . The way it has happened to me, the same 

thing happened to my father also.”). The IJ pointed out that Singh had not previously 

asserted a claim of persecution related to his father’s death and noted that making 

such a claim with “no prior basis” could “open[] a door to lack of credibility.” Id. at 

92. Singh later changed his testimony and asserted that his father died of a drug 

overdose. 

In this court, Singh also cites an exchange regarding the type of weapon used 

in the alleged November 2017 attack. In a written statement, Singh had claimed his 

attackers hit him “with a hockey stick, a bat.” Id., vol. 2 at 490. But at the hearing, 

Singh testified they hit him “with the baseball bats.” Id., vol. 1 at 99. The IJ 

expressed skepticism with this testimony, noting that Singh had not mentioned 

baseball bats during his credible fear interview, that he did not “think they play 

baseball in India,” id. at 101, and that “every time—many of these cases, they always 

mention baseball bats,” id. at 102. The IJ also engaged Singh in the following 

exchange regarding the nature of the weapon in question:

IJ: “Sir, what kind of devices were these?”

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Singh: “Well, it was the same thing, which was over there 

baseball and hockey.”

IJ: “Okay. What were these devices used for normally, other 

than attacking you? What are they normally used for?”

Singh: “Well, no, mostly the people would keep it in their cars to 

beat up the people.”

IJ: “So people just drive around India carrying around clubs 

just to beat on people, sir? Do you have one yourself?”

Singh: “Yes.”

IJ: “Okay. Apparently everyone drives around with a club.”

Id. at 102–03.

We conclude that these colloquies do not evince impermissible bias. To be 

sure, they portend the IJ’s ultimate conclusion that Singh did not testify credibly. 

But the IJ grounded his comments in Singh’s testimony and in inconsistencies 

between his testimony and his prior statements. Cf. Liteky v. United States, 510 U.S. 

540, 555 (1994) (“[O]pinions formed by the judge on the basis of facts introduced or 

events occurring in the course of the current proceedings, or of prior proceedings, do 

not constitute a basis for a bias or partiality motion unless they display a deep-seated 

favoritism or antagonism that would make fair judgment impossible.”). We therefore 

agree with the BIA “that the Immigration Judge was not biased and did not pre-judge 

[Singh’s] case, and that [Singh’s] hearing comported with due process.” 

No. 19-9574, Admin. R., vol. 1 at 3.2

2 Because he did not advance them before the BIA, we lack jurisdiction to 

consider Singh’s arguments that (1) the IJ was biased because the immigration court 

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3. The Adverse Credibility Finding

In assessing a witness’s credibility, the IJ should consider the totality of the 

circumstances and may base an adverse credibility finding on inconsistencies 

between a witness’s testimony and other evidence in the record. See 8 U.S.C. 

§§ 1158(b)(1)(B)(iii), 1229a(c)(4)(C), 1231(b)(3)(C). “The IJ’s credibility 

assessment is a factual finding, and will ordinarily be given great weight.” Htun v. 

Lynch, 818 F.3d 1111, 1118–19 (10th Cir. 2016) (citation and internal quotation 

marks omitted). “As a factual finding, the IJ’s credibility determination is reviewed 

for substantial evidence and should not be reversed unless the record demonstrates 

that any reasonable adjudicator would be compelled to conclude to the contrary.” Id.

at 1119 (internal quotation marks omitted). Under the substantial evidence standard, 

“[o]ur duty is to guarantee that factual determinations are supported by reasonable, 

substantial and probative evidence considering the record as a whole.” Uanreroro v. 

Gonzales, 443 F.3d 1197, 1204 (10th Cir. 2006) (internal quotation marks omitted); 

see also Diallo v. Gonzales, 447 F.3d 1274, 1283 (10th Cir. 2006) (noting that under 

the substantial evidence standard, this court “may not weigh the evidence, and . . . will 

not question the immigration judge’s or BIA’s credibility determinations as long as 

they are substantially reasonable” (internal quotation marks omitted)).3

that the IJ sits in grants asylum to Indian asylum seekers at a lower rate than the 

national average, and (2) the IJ’s manner of questioning deprived him of due process. 

See Garcia-Carbajal, 625 F.3d at 1237.

3 The petition for review in case No. 19-9574 is from a single BIA member’s 

brief order under 8 C.F.R. § 1003.1(e)(5). We review that order as the final agency 

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The BIA found “no clear error in the Immigration Judge’s adverse credibility 

determination insofar as it [was] based on inconsistencies in the record,” citing as an 

example the inconsistencies between Singh’s testimony and the doctor’s letter, which 

Singh submitted in support of his claim. No. 19-9574, Admin. R., vol. 1 at 2–3. The 

BIA noted the doctor reported that Singh “was hospitalized twice due to injuries 

caused ‘by police torture’ for several days in May and November 2017.” Id. at 3 

(quoting id. at 163). But it observed that “in testimony at his removal hearing and in 

testimony at a September 25, 2018, credible fear interview, [Singh] omitted any 

reference to having sought medical treatment for injuries or torture due to his 

encounters with the Congress Party members or with the Indian police.” Id. (citation 

omitted). And it found significance in Singh’s failure to offer a satisfactory 

explanation or additional evidence to overcome this “major discrepancy, which goes 

to the heart of [Singh’s] claim” and “casts doubt on [Singh’s] claim regarding who 

harmed him, as well as when and to what extent he was allegedly harmed.” Id.

(brackets and internal quotation marks omitted).

Singh argues “substantial evidence does not support the IJ’s adverse credibility 

finding.” No. 19-9574, Pet’r Reply Br. at 18. To support this argument, Singh 

determination, limiting our review to the issues specifically addressed therein. 

Diallo, 447 F.3d at 1279. And where the BIA affirms the IJ’s credibility 

determination on clear-error review under 8 C.F.R. § 1003.1(d)(3)(i), we consider 

whether substantial evidence supports the reasons the BIA found no clear error in the 

IJ’s credibility determination. See Htun, 818 F.3d at 1118–20; see also Lasu v. Barr, 

970 F.3d 960, 966 (8th Cir. 2020) (“[W]e review the BIA’s clear error determination 

for substantial evidence.”). 

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asserts the IJ “cherry-picked inconsistencies” and placed insufficient weight on the 

fact that “most of the record indicates consistent testimony by [Singh] throughout the 

asylum process.” Id. He also asserts the IJ placed too much weight on omissions in 

his testimony. 

We reject this argument because “[i]t is not our prerogative to reweigh the 

evidence, but only to decide if substantial evidence supports the agency’s decision.” 

Sidabutar v. Gonzales, 503 F.3d 1116, 1125 (10th Cir. 2007) (brackets and internal 

quotation marks omitted). The BIA noted material discrepancies between Singh’s 

account of the attacks he allegedly suffered and the only other account in the record 

discussing those attacks, the doctor’s letter. That some of the discrepancies sprang 

from omissions in Singh’s testimony does not help Singh’s cause because omissions 

that “defy common sense” can support adverse credibility findings. Ismaiel v. 

Mukasey, 516 F.3d 1198, 1205 (10th Cir. 2008). And it defies common sense for 

Singh to describe the alleged attacks yet fail to mention that two of them had resulted 

in multi-day hospitalizations or that they involved police torture. A reasonable 

adjudicator could base an adverse credibility finding on the discrepancies in the 

record, and we therefore cannot disturb the agency’s finding. See Gutierrez-Orozco 

v. Lynch, 810 F.3d 1243, 1245 (10th Cir. 2016) (“To obtain reversal of factual 

findings, [an alien] must show the evidence he presented was so compelling that no 

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reasonable factfinder could find as the BIA did.” (internal quotation marks 

omitted)).4

4. The BIA’s Rejection of Singh’s CAT Claim

Singh argues in this court that the IJ erred by failing “to consider evidence in 

the Record that [he] would be tortured upon removal to India,” namely, country 

conditions reports that he submitted. No. 19-9574, Pet’r Opening Br. at 33. But 

Singh did not make this argument to the BIA. He instead argued to the BIA that the 

IJ improperly used these country conditions reports to support its adverse credibility 

determination. See No. 19-9574, Admin. R., vol. 1 at 14–16. Because he did not 

present the failure-to-consider-evidence argument to the BIA, we lack jurisdiction to 

consider it. See Garcia-Carbajal, 625 F.3d at 1237. 

B. The BIA’s Denial of Singh’s Motion to Reopen

1. Legal Background and Standard of Review

“Aliens in removal proceedings enjoy a Fifth Amendment right to effective 

representation by their retained counsel.” Molina v. Holder, 763 F.3d 1259, 1263 

(10th Cir. 2014). “In recognition of the right to due process, the [BIA] has decided 

that ineffective assistance of counsel is a valid ground for reopening a deportation 

case in egregious circumstances.” Osei v. INS, 305 F.3d 1205, 1208 (10th Cir. 2002)

(internal quotation marks omitted). So in Matter of Lozada, 19 I. & N. Dec. 637 

4 Because he did not advance them before the BIA, we lack jurisdiction to 

consider Singh’s arguments that (1) the IJ applied an improper legal standard in 

determining credibility, and (2) the IJ erred by relying on the doctor’s letter. See 

Garcia-Carbajal, 625 F.3d at 1237.

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(B.I.A. 1988), the BIA “created . . . a mechanism for hearing due-process based 

claims of ineffective assistance of counsel.” Osei, 305 F.3d at 1208. Under Matter 

of Lozada, the alien must file a motion to reopen that satisfies certain “procedural 

requirements”5 and must “show that he was prejudiced by the action or inaction of 

his counsel.” Matter of Compean, 25 I. & N. Dec. 1, 1–2 (B.I.A. 2009) (citing 

Matter of Lozada, 19 I. & N. Dec. at 639–40). “To establish prejudice, an alien must 

show a reasonable likelihood that the outcome would have been different but for the 

attorney’s deficient performance.” Molina, 763 F.3d at 1263 (internal quotation 

marks omitted); see also Matter of Melgar, 28 I. & N. Dec. 169, 171 (B.I.A. 2020)

(holding that to establish prejudice under Matter of Lozada, an alien must show “a 

reasonable probability” that he or she would have prevailed on the claim “but for” the 

attorney’s mistakes). Where an alien makes the required showing under Matter of 

5 The procedural requirements are as follows:

First, the motion should be supported by an affidavit of the allegedly 

aggrieved applicant attesting to the relevant facts. Second, before the 

allegation is presented to the [BIA], the former counsel must be 

informed of the allegations and allowed the opportunity to respond. 

Any subsequent response from counsel, or report of counsel’s failure or 

refusal to respond should be submitted with the motion. Finally, if it is 

asserted that prior counsel’s handling of the case involved a violation of 

ethical or legal responsibilities, the motions should reflect whether a 

complaint has been filed with appropriate disciplinary authorities 

regarding such representation, and if not, why not.

Osei, 305 F.3d at 1209 n.2 (internal quotation marks omitted).

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Lozada, the BIA holds that the alien satisfies the requirements for reopening. See 

Osei, 305 F.3d at 1209–10. 

When the issue of ineffective representation is “raised in a motion to reopen, 

we review the Board’s decision under an abuse-of-discretion standard.” Molina, 

763 F.3d at 1263; see also Mena-Flores v. Holder, 776 F.3d 1152, 1169 

(10th Cir. 2015) (“[W]e consider whether the agency abused its discretion” “[i]n 

rejecting [an alien’s] claim of ineffective representation” brought through a motion to 

reopen.); Galvez Piñeda v. Gonzales, 427 F.3d 833, 838 (10th Cir. 2005) (“We 

review the BIA’s decision on a motion to reopen for an abuse of discretion.” (internal 

quotation marks omitted)).6 “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.” Qiu v. 

Sessions, 870 F.3d 1200, 1202 (10th Cir. 2017) (internal quotation marks omitted). 

“Moreover, committing a legal error or making a factual finding that is not supported 

by substantial record evidence is necessarily an abuse of discretion.” Id. (brackets 

and internal quotation marks omitted).

6 Without addressing this precedent or citing any contrary precedent on point, 

Singh argues for de novo review. We are bound by our precedent that dictates an 

abuse-of-discretion standard of review. See United States v. Lira-Ramirez, 951 F.3d 

1258, 1260–61 (10th Cir. 2020).

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2. Application

Singh argues the BIA committed legal error in denying his motion to reopen 

because it failed to cite or apply the prejudice standard from Matter of Lozada and its 

progeny—i.e., that the alien “show a reasonable likelihood that the outcome would 

have been different,” Molina, 763 F.3d at 1263 (internal quotation marks omitted)—

and instead applied an elevated standard of prejudice from Matter of F-S-N-, 28 I. & 

N. Dec. 1, 3 (B.I.A. 2020)—i.e., that the alien “overcome” a prior adverse credibility 

determination. We agree. 

The BIA correctly noted that to succeed on his ineffective assistance of 

counsel claim, Singh had to “demonstrate[] that he was prejudiced by the actions of 

his former counsel such that the proceedings were fundamentally unfair.” 

No. 22-9595, Admin. R., vol. 1 at 100. But while the BIA supported this statement

with a citation to this court’s decision in Mena-Flores, the BIA did not acknowledge 

Mena-Flores’s holding that “the prejudice prong requires a reasonable likelihood that 

the outcome would have been different but for counsel’s deficient performance.” 

776 F.3d at 1169 (internal quotation marks omitted). The BIA instead cited Matter of 

F-S-N- and held that Singh did not “demonstrate that his prior counsel’s performance 

was prejudicial to him” because he had “not overcome the prior adverse credibility 

determination.” No. 22-9505, Admin. R., vol. 1 at 101 (emphasis added). 

The BIA did not elucidate the showing needed to “overcome the prior adverse 

credibility determination.” Id. So we look to the case it relied on, Matter of F-S-N-, 

for guidance. See Berdiev v. Garland, 13 F.4th 1125, 1131–32 (10th Cir. 2021)

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(looking to cases cited by the BIA to glean the test it employed where the BIA did 

not “elaborate on the legal standard[] it applie[d]”).

Matter of F-S-N- did not involve a claim of ineffective assistance of counsel. 

It involved a motion to reopen based on new evidence, and the BIA held that to 

succeed in that case, the alien had to show “the new evidence offered would likely 

change the result in the case.” 28 I. & N. Dec. at 3 (citing INS v. Abudu, 485 U.S. 94,

110 (1988) and Matter of Coelho, 20 I. & N. Dec. 464, 473 (B.I.A. 1992)). Because 

the alien’s case had been “denied based on an adverse credibility finding,” the BIA 

observed that to meet this standard the alien had to “either overcome the prior 

[adverse credibility] determination or show that the new claim [was] independent of 

the evidence that was found to be not credible.” Id. It followed this remark with a 

footnote that stated: “To rehabilitate a claim that was denied based on an adverse 

credibility finding, [an alien] must present previously unavailable evidence that is 

independent of the prior claim or refutes the validity and finality of the credibility 

determination in the prior proceeding.” Id. at 3 n.3. We read Matter of F-S-N- as 

applying the “would likely change the result” standard when it indicated the alien had 

to “overcome” an adverse credibility finding. Id. at 3. 

Under BIA precedent cited in Matter of F-S-N-, new evidence would not likely 

change the result in the case if the BIA’s “decision on the appeal would be the same

even if the proffered evidence were already part of the record on appeal.” Matter of 

Coelho, 20 I. & N. Dec. at 473 (emphasis added). In contrast, the “‘reasonable 

likelihood’ standard” that applies to a claim of ineffective assistance of counsel does 

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not “require an alien to show . . . that he ‘would’ have obtained relief or the outcome 

of the proceeding ‘would’ have been different.” United States v. Aguirre-Tello, 

353 F.3d 1199, 1209 (10th Cir. 2004). 

The BIA applied an incorrect legal standard in deciding whether Singh had 

been prejudiced by his attorney’s alleged ineffective assistance because it required 

him to “overcome” the adverse credibility determination to show prejudice. The BIA 

therefore abused its discretion in denying Singh’s motion to reopen. See Qiu, 

870 F.3d at 1202 (“[C]ommitting a legal error . . . is necessarily an abuse of 

discretion.” (internal quotation marks omitted)). On remand, the BIA should 

consider whether there is “a reasonable likelihood that the outcome would have been 

different but for counsel’s deficient performance.” Mena-Flores, 776 F.3d at 1169

(internal quotation marks omitted). 

C. Cumulative Error

Singh argues for the first time in this court that the IJ violated his due process 

rights through cumulative error. Because Singh did not advance this argument before 

the BIA, we lack jurisdiction to consider it. See Garcia-Carbajal, 625 F.3d at 1237. 

III. Conclusion

In case No. 19-9574, we deny Singh’s petition for review. In case 

No. 22 9505, we grant Singh’s petition for review, vacate the BIA’s order denying 

his motion to reopen, and remand to the BIA for it to consider Singh’s motion to 

reopen by applying the correct legal standard consistent with this order and 

judgment.

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We deny Singh’s motion to supplement the record in case No. 19-9574 as 

moot because the documents he sought to have included in the record were 

subsequently included in the record in these consolidated cases via the filing of the 

administrative record in case No. 22-9505.

Entered for the Court

Carolyn B. McHugh

Circuit Judge

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