discussion of equitable tolling,1 as the government concedes, the agency denied the

petition for review on the prejudice prong alone. Therefore, we review only the

prejudice analysis, since “[i]n reviewing the decision of the BIA, we consider only

1 The BIA noted that the Pinedas failed to comply with the Matter of Lozada requirements for the attorneys who represented them on direct appeal to the BIA and on a 2006 motion to reopen. 19 I&N Dec. 637 (BIA 1988). But the Pinedas seek to reopen their removal proceedings, and they did comply with Lozada as to the attorney who represented them there. The BIA may have been suggesting that the Pinedas needed to comply with Lozada for the intermediary attorneys in order to show equitable tolling of the motion to reopen filing deadline. See Singh v. Holder, 658 F.3d 879, 884 (9th Cir. 2011). But, as the government concedes in its brief, the BIA denied the Pinedas’ motion on the prejudice prong only. Therefore, we do not address the issue here.

3 the grounds relied upon by that agency,” as we “cannot affirm the BIA on a ground

upon which it did not rely.” Doissaint v. Mukasey, 538 F.3d 1167, 1170 (9th Cir.

2008) (emphasis added) (citations omitted).

The conclusion that the Pinedas did not show prejudice was an abuse of

discretion. “The BIA must . . . credit evidence supporting a motion to reopen

unless that evidence is ‘inherently unbelievable.’” Shouchen Yang v. Lynch, 822

F.3d 504, 508 (9th Cir. 2016) (quoting Tadevosyan v. Holder, 743 F.3d 1250, 1256

(9th Cir. 2014)). The evidence submitted with the Pinedas’ motion to reopen

demonstrates that, at the time their attorney improperly withdrew the asylum

application, they had plausible claims for asylum, withholding of removal, and

relief under the Convention Against Torture (CAT) based on past and feared future

harm to the Pineda family on the basis of land ownership.2 See Cordoba v. Holder,

2 At oral argument, the parties discussed whether the Pinedas’ asylum application would have been untimely. See 8 U.S.C. § 1158(a)(2)(B) (requiring that an applicant file for asylum “within 1 year after the date of the alien’s arrival in the United States”). Because Raul Pineda entered the United States in lawful status in 2000 and filed for asylum in 2001, he may have filed before the one-year deadline or within a “reasonable period” after the expiration of his lawful status. See Husyev v. Mukasey, 528 F.3d 1172, 1177-78 (9th Cir. 2008); 8 C.F.R. § 1208.4(a)(5)(iv). He has therefore shown “plausible grounds” that his application would have been considered timely if properly filed. His wife, Blanca Pineda, was included as a derivative on his application, and is therefore not subject to the one- year bar. See 8 C.F.R. § 1208.21(a) (noting that a spouse may be granted asylum “if accompanying . . . the principal alien who was granted asylum” unless ineligible under 8 U.S.C. § 1158(b)(2)(A)(i)-(v), but not under 8 U.S.C. § 1158(a)(2)(B)). Moreover, the government has not raised any argument regarding the application of the one-year bar to the Pinedas’ asylum application, and

4 726 F.3d 1106, 1114 (9th Cir. 2013) (“For almost thirty years, the BIA has

recognized that landownership may form the basis of a particular social group

within the meaning of the INA.”); Lin v. Ashcroft, 377 F.3d 1014, 1027 (9th Cir.

2004) (citation omitted) (“To prove he was prejudiced by counsel’s alleged

ineffectiveness, [petitioner] ‘only needs to show that he has plausible grounds for

relief.’”). Therefore, we grant the petition in part and remand for further

proceedings.

PETITION GRANTED IN PART, DENIED IN PART.

therefore has waived it. See Martinez v. Sessions, 873 F.3d 655, 660 (9th Cir. 2017) (finding that the government had “waived any challenge” to part of petitioner’s case where it did “not offer any argument on the merits”).

5