Elvis Cardenas-Martinez v. Merrick Garland, 19-2327

Background

Cardenas-Martinez, a Honduran who entered the U.S. in 2014 as an unaccompanied minor, has epilepsy and diagnosed/suspected neurocognitive disorders (ADHD, anxiety, possible autism).
He applied for asylum asserting persecution as a member of proposed particular social groups (Honduran children lacking familial protection; children with epilepsy; children with disabilities).
At his USCIS interview he reportedly could not answer questions; later counsel Hila Moss filed a prosecutorial-discretion request noting his cognitive impairments but declined to raise competency at the IJ hearing.
The IJ conducted a M-A-M- style colloquy sua sponte, found him competent to proceed, credited his testimony, but denied asylum for failure to show persecution "on account of" a protected ground (no nexus).
The BIA dismissed his appeal; over a year later he moved to reopen alleging ineffective assistance under Matter of Lozada and submitted new evidence (neuropsychological evaluation and a state-court finding of incompetence and guardianship).
The BIA denied reopening (finding no deficient performance or prejudice and that the new evidence would not change the result); the Fourth Circuit denied review, upholding the BIA's exercise of discretion.

Issues

Issue	Cardenas-Martinez's Argument	Government's Argument	Held
1) Was counsel ineffective for failing to raise competency and seek M-A-M- safeguards?	Moss should have raised competency given prior USCIS interview and PD request; failure was deficient and prejudicial.	IJ sua sponte conducted the proper M-A-M- colloquy, found competency, so any counsel lapse caused no prejudice.	Denied: no Lozada relief — IJ's inquiry cured any counsel omission; petitioner does not challenge competency finding.
2) Was counsel ineffective for not relying on Temu to establish a cognizable particular social group?	Temu supports recognizing disability-based PSG analogously; counsel's omission was deficient.	Temu involved different disorder and country; even if PSG arguable, IJ and BIA rejected nexus — Temu would not change outcome.	Denied: Temu not on point and would not have affected dispositive nexus issue; no Lozada prejudice shown.
3) Does newly submitted evidence (neuro eval and state-court incompetency/guardian) warrant reopening?	New diagnoses and a competency adjudication are material and likely would change the result; motion should be granted.	Motion-to-reopen standard is demanding; petitioner failed to show the new evidence would likely change the outcome.	Denied: BIA reasonably concluded the new evidence was not likely to alter the dispositive nexus-based outcome.
4) Did the BIA provide an adequate explanation for denying reopening?	BIA’s one-sentence denial of the new evidence was conclusory; remand required to articulate reasoning.	BIA’s prior discussion of competency and nexus supplies a rational bridge; terse disposition was adequate.	Denied: Court finds BIA’s earlier analysis explains why new evidence was immaterial, so no abuse of discretion.

Key Cases Cited

Canales-Rivera v. Barr, 948 F.3d 649 (4th Cir.) (explaining asylum statute framework)
Temu v. Holder, 740 F.3d 887 (4th Cir.) (recognizing PSG for individuals with bipolar disorder who exhibit erratic behavior)
Diop v. Lynch, 807 F.3d 70 (4th Cir.) (describing IJ discretion and flexibility in testing competency under M-A-M-)
Barry v. Gonzales, 445 F.3d 741 (4th Cir.) (abuse-of-discretion review of BIA denial of motion to reopen based on ineffective assistance)
INS v. Doherty, 502 U.S. 314 (1992) (abuse-of-discretion standard for motions to reopen)
Figeroa v. INS, 886 F.2d 76 (4th Cir.) (Lozada prejudice requires prima facie showing of eligibility for relief)
Kuusk v. Holder, 732 F.3d 302 (4th Cir.) (rigorous standard for equitable tolling in immigration context)
Motor Vehicle Mfrs. Ass'n v. State Farm, 463 U.S. 29 (1983) (agency explanation must permit judicial review of reasoning)
Nken v. Holder, 585 F.3d 818 (4th Cir.) (remand required when BIA explanation is inadequate)
Lawrence v. Lynch, 826 F.3d 198 (4th Cir.) (BIA discretion over motions to reopen)
United States v. Morris, 917 F.3d 818 (4th Cir.) (failure to make a novel legal argument is not necessarily deficient assistance)
SEC v. Chenery Corp., 332 U.S. 194 (1947) (review limited to grounds relied on by agency)
Anim v. Mukasey, 535 F.3d 243 (4th Cir.) (withholding/CAT standards are more demanding than asylum)