Moreno v. Bondi: Diligence and Prejudice Requirements Limit Ineffective-Assistance Challenges to Removal Proceedings

Court: United States Court of Appeals for the Tenth Circuit
Date: October 23, 2026
Case number: 25-9581

Precedential status: This order and judgment is not binding precedent, except under law of the case, res judicata, and collateral estoppel. It may be cited for persuasive value. The decision applies existing law rather than establishes a new binding rule.

1. Introduction

In Moreno v. Bondi, the Tenth Circuit considered whether alleged failures by successive immigration lawyers justified reopening removal proceedings despite procedural deadlines and the limitation on successive reopening motions. Although the supplied case title names Bondi, the opinion substitutes Todd Blanche as the respondent Attorney General under Federal Rule of Appellate Procedure 43(c)(2).

The petitioners, Liz Marilen Moreno and her minor daughter, G.M.S., are Peruvian citizens who sought asylum, withholding of removal, and protection under the Convention Against Torture (CAT). After their applications were denied, Moreno encountered repeated difficulties with legal representation, including an attorney’s failure to submit an appellate brief. Her second motion to reopen alleged ineffective assistance, but the Board of Immigration Appeals (BIA) rejected it as untimely and barred by the numerical limit on reopening motions.

The central issues were whether Moreno had demonstrated sufficient diligence to obtain equitable tolling, whether her attorneys’ alleged errors prejudiced her proceedings, whether she could raise a new ineffective-assistance theory directly in court, and whether the court could review the BIA’s refusal to reopen proceedings on its own initiative.

The decision’s central lesson is that allegations of serious attorney misconduct do not eliminate the need to satisfy distinct procedural and constitutional requirements. A claimant must explain her diligence, present the relevant theory to the agency, and demonstrate how counsel’s errors could have affected the outcome.

2. Background and Procedural History

The underlying protection claims

Moreno and her daughter entered the United States on January 31, 2023. The Department of Homeland Security began removal proceedings the following day. They admitted facts establishing removability but sought protection against return to Peru.

Representing herself before the Immigration Judge (IJ), Moreno described a dispute over money she had lent to another woman. After that woman refused repayment, the woman’s adult sons threatened to kill Moreno and her daughter. One son raped Moreno and threatened to harm her daughter if she contacted authorities. Moreno reported the unpaid loan to police, but not the rape. Police told her they could do nothing, and she left Peru approximately two months later.

The IJ recognized the rape as harm sufficiently severe to support a persecution claim. Nevertheless, the IJ concluded that the perpetrator acted from criminal and financial motives rather than because of a protected characteristic. Asylum requires persecution connected to race, religion, nationality, membership in a particular social group, or political opinion. The IJ also found that Moreno had not established that Peru’s government was unable or unwilling to protect her. The threats against her daughter were not independently severe enough to establish separate persecution.

Moreno also testified to earlier verbal and emotional abuse by her daughter’s father, a police officer. The Tenth Circuit expressly stated that this additional testimony did not change its analysis.

The administrative appeal

After the IJ’s decision, Moreno retained Ms. Arroyo, who filed a notice of appeal to the BIA. When the BIA denied an extension request, Arroyo did not file an opening brief.

The BIA nevertheless considered the argument in the notice of appeal that the IJ had inadequately developed the record concerning membership in a particular social group. It declined to resolve that issue because it affirmed the separate, dispositive finding that Moreno had not shown the Peruvian government was unable or unwilling to protect her.

The two reopening motions

Still represented by Arroyo, Moreno filed her first reopening motion more than 90 days after the BIA’s decision. She sought equitable tolling and reopening on the BIA’s own initiative, alleging ineffective assistance by a lawyer consulted before the IJ hearing. The BIA rejected that theory because, according to Moreno’s testimony, that lawyer had declined representation; no attorney-client relationship supported the claim.

Almost a year later, Mr. Zavala, another lawyer at Arroyo’s firm, filed a second reopening motion. This motion alleged that Arroyo had rendered ineffective assistance by failing to file the appellate brief. The BIA denied the motion as both untimely and number-barred under 8 C.F.R. § 1003.2(c)(2).

The BIA also rejected equitable tolling. Even assuming ineffective assistance, Moreno had not demonstrated diligence between learning of the alleged deficiency in June or August 2024 and filing the second motion on August 1, 2025. It additionally declined discretionary, sua sponte reopening.

3. Summary of the Court’s Decision

The Tenth Circuit denied the petition for review and granted Moreno permission to proceed without prepaying costs or fees. Its conclusions were:

  • No abuse of discretion: The BIA properly applied the ordinary time and numerical limits, which Moreno did not dispute applied to her second motion.
  • No demonstrated diligence: Moreno offered no developed explanation, before either the BIA or the court, showing diligent pursuit of reopening during the approximately year-long interval after discovery of the alleged ineffective assistance.
  • An unexhausted theory: The court would not consider allegations about Zavala’s own ineffectiveness because Moreno had not first presented that specific theory to the BIA.
  • No demonstrated prejudice: Even assuming Arroyo was ineffective, Moreno did not identify evidence or develop an argument showing that counsel’s failure could have changed the outcome.
  • Limited review of sua sponte reopening: The court lacked jurisdiction to review the BIA’s discretionary assessment of extraordinary circumstances and found no underlying legal error that would permit intervention.

4. Analysis

A. Precedents Cited and Their Influence

Qiu v. Sessions, 870 F.3d 1200 (10th Cir. 2017)

Qiu v. Sessions supplied the abuse-of-discretion standard governing denial of a reopening motion. Under that standard, a BIA decision is defective if it lacks a rational explanation, inexplicably departs from established policies, offers no reasoning, or consists only of conclusory statements.

This framework focused review on whether the BIA reasonably explained its decision, not whether the appellate judges would independently favor reopening. The BIA identified applicable procedural restrictions and explained the deficiency in Moreno’s diligence showing. The court found no abuse of discretion.

Mahamat v. Gonzales, 430 F.3d 1281 (10th Cir. 2005)

Mahamat v. Gonzales supported the requirement of diligence for equitable tolling. The relevant inquiry was not merely whether counsel had performed inadequately, but whether Moreno had diligently pursued relief after discovering the alleged deficiency.

The opinion does not establish a categorical rule that a delay of approximately one year always defeats tolling. Its narrower conclusion rests on the absence of an explanation showing diligence during that interval.

Hall v. Bellmon, 935 F.2d 1106 (10th Cir. 1991)

Hall v. Bellmon provided the basis for liberally construing Moreno’s pro se submissions. The government argued that her receipt of pro bono assistance should prevent such treatment. Because the issue did not affect the result, the court afforded the usual liberal construction without resolving that broader question.

The decision illustrates the limits of liberal construction: reading a filing generously does not supply missing evidence or establish diligence and prejudice on a litigant’s behalf.

Lucio-Rayos v. Sessions, 875 F.3d 573 (10th Cir. 2017)

Lucio-Rayos v. Sessions supplied both de novo review of the constitutional claim and its substantive requirements. A petitioner must establish a deprivation of due process and resulting prejudice. The asserted violation must have occurred in a manner that could potentially affect the proceedings’ outcome.

This precedent was decisive because Moreno’s allegations identified attorney failures without explaining how competent representation would have overcome the dispositive obstacle to relief. Identifying an omitted argument was insufficient without developing its factual or legal basis.

Mendiola v. Holder, 585 F.3d 1303 (10th Cir. 2009)

Mendiola v. Holder supported the proposition that ineffective assistance can ground a due process challenge in removal proceedings. It also helped distinguish that challenge from a criminal defendant’s Sixth Amendment right to counsel.

The opinion identifies Mendiola v. Holder as overruled on other grounds. Its use here was therefore confined to the proposition relevant to ineffective assistance and procedural fairness, not an endorsement of every aspect of the earlier decision.

Contreras-Bocanegra v. Holder, 678 F.3d 811 (10th Cir. 2012) (en banc)

Contreras-Bocanegra v. Holder appeared to qualify the citation to Mendiola v. Holder by identifying its partial overruling. The court did not independently apply the substantive holding of Contreras-Bocanegra v. Holder to resolve Moreno’s petition. Its role was to clarify the precedential status of the authority being cited.

Miguel-Pena v. Garland, 94 F.4th 1145 (10th Cir. 2024)

Miguel-Pena v. Garland supplied the exhaustion rule: under 8 U.S.C. § 1252(d)(1), the same specific legal theory must first be presented to the BIA before it is advanced in court.

Moreno’s second motion challenged Arroyo’s conduct, not Zavala’s alleged delay or failure to disclose a potential conflict arising from continued representation by the same firm. Allegations about one attorney did not exhaust claims about another attorney’s distinct conduct. The court therefore declined to consider the Zavala theory for the first time on judicial review.

Roe v. Flores-Ortega, 528 U.S. 470 (2000)

Moreno invoked Roe v. Flores-Ortega to seek a presumption of prejudice based on an asserted complete denial of participation. The Tenth Circuit distinguished that criminal-appeal decision because its reasoning rests on the Sixth Amendment right to counsel and the corresponding presumption that counsel’s assistance is essential.

The court declined to import that presumption into removal proceedings. Moreno still had to demonstrate prejudice under the applicable due process framework. This distinction concerns the absence of the equivalent constitutional right and presumption; it should not be read as eliminating statutory opportunities to retain counsel in immigration proceedings.

Reyes-Vargas v. Barr, 958 F.3d 1295 (10th Cir. 2020)

Reyes-Vargas v. Barr established the relevant boundary for reviewing sua sponte reopening. Courts generally cannot review the BIA’s discretionary conclusion that circumstances are insufficiently extraordinary because there are no judicial standards for assessing that choice.

However, courts retain authority to review underlying legal questions, including reliance on an incorrect legal premise or misunderstanding of the legal framework. Moreno identified no such error, leaving the discretionary refusal beyond review.

B. Legal Reasoning

Distinct legal requirements cannot be collapsed into a general allegation of unfairness

The opinion treats timeliness, diligence, exhaustion, and prejudice as separate inquiries. Alleged attorney misconduct may explain why a petitioner seeks relief, but it does not automatically answer each inquiry. The court could assume ineffective assistance for analytical purposes and still reject relief because other necessary showings were missing.

Under the ordinary reopening rule applied here, a person may file one motion within 90 days of the BIA’s final decision. Moreno’s second motion exceeded both restrictions. The court did not announce that such restrictions can never be overcome; it held that her unexplained lack of diligence did not justify the equitable relief requested.

Equitable tolling turns on the response to discovering the problem

The BIA focused on the period after Moreno learned of Arroyo’s alleged failure. Her petition emphasized repeated errors by lawyers from the same firm, but did not explain what actions demonstrated diligent pursuit of relief during the ensuing months.

This is an important distinction between the existence of attorney error and the justification for late filing. Proof of the former does not, by itself, establish the latter. Nor did the court need to resolve definitively whether Arroyo’s conduct amounted to ineffective assistance: the diligence deficiency independently supported the denial of tolling.

Prejudice required confronting the dispositive protection finding

The original BIA decision rested on Moreno’s failure to establish that Peru’s government was unable or unwilling to protect her. That independent ground made it unnecessary for the BIA to decide whether the IJ adequately developed the particular-social-group issue.

Accordingly, Moreno needed more than an assertion that an appellate brief should have addressed government protection. She needed to identify evidence or reasoning showing why that argument could have succeeded. Her petition did neither and offered no other developed basis for concluding that she and her daughter likely would have obtained relief absent counsel’s mistakes.

The court did not independently find that Peru would protect Moreno. It found that she had not demonstrated how counsel’s errors could have changed the administrative outcome. Likewise, the decision should not be read as establishing an absolute requirement that survivors report sexual violence to authorities before seeking asylum. The IJ relied on nonreporting in this record; the appellate ruling concerned Moreno’s failure to develop a prejudicial-error argument.

Same-firm representation did not dispense with exhaustion

The court acknowledged the practical difficulty: Zavala, who filed the second motion, was unlikely to argue that he himself had been ineffective. Nevertheless, the motion’s challenge to Arroyo did not place Zavala’s own conduct before the BIA.

The alleged conflict and delay therefore remained unexhausted theories, not established misconduct or independently adjudicated due process violations. This exhaustion ruling was distinct from the court’s separate jurisdictional limitation concerning discretionary sua sponte reopening.

The decision reviewed reopening, not the protection claims afresh

The petition concerned denial of the second motion to reopen. Although the underlying facts were necessary to assess prejudice, the court did not conduct a new merits determination of asylum, withholding of removal, or CAT protection. In particular, it did not separately analyze the substantive requirements for withholding or CAT relief.

C. Potential Impact

Although nonprecedential, the decision provides persuasive guidance for future reopening disputes:

  • A documented diligence narrative matters. A petitioner should explain when counsel’s deficiency was discovered and what occurred afterward, rather than rely exclusively on the seriousness of counsel’s mistake.
  • Prejudice must address the actual basis for denial. Criticizing an omitted argument is insufficient if an independent, dispositive finding remains unanswered.
  • Ineffective-assistance theories must be presented specifically. A challenge concerning one lawyer does not necessarily preserve allegations involving another lawyer, even within the same firm.
  • Criminal-law presumptions do not automatically transfer. The court required an immigration-specific due process showing rather than presumed prejudice.
  • Sua sponte reopening remains narrowly reviewable. A disagreement over extraordinary circumstances is different from an identifiable legal error.

The opinion thus reinforces existing procedural discipline without creating a categorical rule that attorney failures can never justify reopening.

5. Complex Concepts Simplified

Motion to reopen
A request that the immigration agency reopen a completed case for further consideration. It is subject to procedural limits and is not simply another unrestricted appeal.
Number-barred
Blocked by the ordinary limit on how many reopening motions may be filed. Moreno’s challenged motion was her second.
Equitable tolling
A doctrine that can excuse late filing in appropriate circumstances. Here, the critical missing element was a showing of diligent pursuit of relief.
Prejudice
A meaningful connection between an alleged procedural wrong and the result. It is not enough to show that counsel made an error; the petitioner must show how the error could have affected the outcome.
Exhaustion
The requirement to give the agency the first opportunity to address the specific legal theory later raised in court.
Protected-ground nexus
The required connection between persecution and a legally protected characteristic. Severe criminal harm does not, by severity alone, establish that connection.
Sua sponte reopening
Reopening initiated through the BIA’s own discretionary authority. Its discretionary refusal is generally unreviewable, although an underlying legal mistake may be reviewed.
Abuse of discretion and de novo review
Abuse-of-discretion review asks whether the agency’s decision was rational and properly explained. De novo review independently evaluates a legal or constitutional question.

6. Conclusion

Moreno v. Bondi demonstrates that even troubling allegations of repeated attorney failures do not automatically reopen removal proceedings. Moreno did not explain the diligence necessary for equitable tolling, establish outcome-related prejudice, or first present her separate allegations against Zavala to the BIA. The court also found no reviewable legal error underlying the refusal of sua sponte reopening.

The decision’s broader significance is practical rather than precedent-setting: successful ineffective-assistance challenges require a timely, specifically presented, and outcome-focused showing—not merely proof that counsel performed poorly.