Mukhia v. Holder
507 F. App'x 824
10th Cir.2013Background
- Mukhia is a Nepalese citizen who entered the U.S. legally in 2004 with her adult son and overstayed.
- Her husband also entered in 2001 and overstayed.
- In August 2005 she retained Ravi Kanwal and filed a joint asylum application for herself and her husband on August 30.
- DHS served a Notice to Appear on May 2, 2006, charging removability; they proceeded before an IJ with her husband and son.
- The IJ found insufficient corroboration for her fears and denied asylum, withholding of removal, and CAT relief; the BIA denied the appeal in 2008 and later denied remand; Mukhia later filed a second motion to reopen in 2011 alleging ineffective assistance and changed country conditions, which the BIA again denied; DHS removed her husband in 2010, and Mukhia obtained new counsel and pursued further relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ineffective-assistance prejudice standard on reopening | Mukhia argues Kanwal's incompetence prejudiced her case by failing to secure corroboration. | BIA found lack of prejudice based on unauthenticated or insufficient corroboration. | Remand for explanation of prejudice showing is required. |
| Equitable tolling for ineffective assistance | Mukhia contends Lozada-based tolling applies due to counsel's failure. | BIA did not articulate grounds for tolling; agency grounds insufficient. | Remand to address whether prejudice supports tolling and the scope of applicability. |
| Changed country conditions as a basis to reopen | Mukhia asserts Nepal's changed conditions are material to relief and warrant reopening. | BIA determined changes were not shown as material to her claims. | Remand for explicit articulation of why changes are or are not material. |
Key Cases Cited
- Riley v. INS, 310 F.3d 1253 (10th Cir. 2002) (equitably tolling time limits based on ineffective assistance)
- Duran-Hernandez v. Ashcroft, 348 F.3d 1158 (9th Cir. 2003) (prejudice requirement for due-process-type claims in removal)
- Ochieng v. Mukasey, 520 F.3d 1110 (10th Cir. 2008) (prejudice showing required for ineffective-assistance claim)
- Osei v. INS, 305 F.3d 1205 (10th Cir. 2002) (fundamental fairness in deportation with ineffective counsel)
- Wei v. Mukasey, 545 F.3d 1248 (10th Cir. 2008) (changed-country-conditions exception to reopen)
- Mickeviciute v. INS, 327 F.3d 1159 (10th Cir. 2003) (need for rational, articulated agency reasoning on remand)