Anne Mwagiru v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 19, 2020
• Docket: 17-73354
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 19 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ANNE WANGARI MWAGIRU, No. 17-73354 18-72177 Petitioner, Agency No. A200-754-599 v.

WILLIAM P. BARR, Attorney General, MEMORANDUM*

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted March 6, 2020** Seattle, Washington

Before: IKUTA and R. NELSON, Circuit Judges, and OLIVER,*** District Judge.

In these consolidated petitions for review, Anne Wangari Mwagiru, a native

and citizen of Kenya, seeks review of the Board of Immigration Appeals’s (“BIA”)

orders denying her motion to reopen and denying her motion to reconsider. As the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Solomon Oliver, Jr., United States District Judge for the Northern District of Ohio, sitting by designation. parties are familiar with the facts, we do not recount them here. We have jurisdiction

under 8 U.S.C. § 1252. We review the denial of motions to reopen or reconsider for

abuse of discretion. Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir. 2005). We

review factual findings for substantial evidence and review questions of law de novo.

Id. at 791–92. We deny the petitions for review in both cases, 17-73354 and 18-

72177.

1. There is no dispute that Mwagiru’s motion to reopen was untimely; it was

filed almost three years after the deadline. See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R.

§ 1003.2(c)(2). The BIA did not abuse its discretion in finding that equitable tolling

was not warranted because, as explained below, Mwagiru did not provide an

adequate basis to excuse the untimeliness of her motion. See Iturribarria v. I.N.S.,

321 F.3d 889, 897 (9th Cir. 2003) (we recognize “equitable tolling of deadlines and

numerical limits on motions to reopen or reconsider during periods when a petitioner

is prevented from filing because of deception, fraud, or error . . .”).

Mwagiru argued that equitable tolling was warranted based on the ineffective

assistance of her prior attorneys. However, the record clearly shows, and substantial

evidence supports the BIA’s finding, that she failed to show that her former

attorneys’ performance was inadequate and failed to show prejudice. See

Mohammed, 400 F.3d at 793–94 (to prevail on an ineffective assistance of counsel

claim, an alien must show that counsel failed to perform with sufficient competence

2 and that she was prejudiced by counsel’s performance; prejudice results when

counsel’s performance was so inadequate that it may have affected the outcome of

the proceedings). Therefore, the BIA did not abuse its discretion in denying

Mwagiru’s untimely motion to reopen on this basis.

The BIA did not abuse its discretion in finding that Mwagiru failed to comply

with Matter of Lozada.1 Though Matter of Lozada does not require an applicant to

file a bar complaint, Mwagiru’s explanation for her failure to file a complaint against

her first former counsel was unsatisfactory and contrary to Lozada’s purpose

because it was inconsistent with other statements she made in the record. Compare

Admin. R. at 369 (testifying that her first former counsel told her to document her

asylum claim and communicate it to new counsel in response to the question “[h]ave

you filed any type of bar complaint against this attorney who you had previously?”),

with Admin. R. at 110–11 (claiming that she did not file a bar complaint against her

first former counsel because he was “kind of tough” and she believed that he was

“the kind of person who c[ould] start making things tough for [her]”). The purpose

of Lozada is to ensure that “an adequate factual basis exists in the record for an

ineffectiveness complaint,” to deter meritless claims, Castillo-Perez v. I.N.S., 212

1 Matter of Lozada provides that a petitioner alleging ineffective assistance of counsel should, among other things, show that a complaint against prior counsel was filed with the proper disciplinary authorities or explain why no such complaint was filed. 19 I. & N. Dec. 637, 639 (B.I.A. 1988).

3 F.3d 518, 526 (9th Cir. 2000), and “to protect against the collusive use by aliens and

their counsel of ineffective assistance of counsel claims to achieve delay,” Lo v.

Ashcroft, 341 F.3d 934, 938 (9th Cir. 2003). The record reflects that there was no

factual basis to support Mwagiru’s ineffective assistance of counsel claim against

her first former counsel. Further, Mwagiru’s inconsistent explanations suggest that

her ineffective assistance of counsel claim against her first attorney is aimed at

achieving delay.

2. Contrary to Mwagiru’s assertion, the BIA did not engage in impermissible

factfinding in violation of 8 C.F.R. § 1003.1(d)(3)(iv) in concluding that she was not

a member of her proposed particular social group—married Kenyan women who are

unable to leave a relationship. See 8 C.F.R. § 1003.1(d)(3)(iv) (“[T]he Board will

not engage in factfinding in the course of deciding appeals.”). That regulation neither

states nor implies that the BIA cannot engage in factfinding in deciding a motion to

reopen on the basis of an ineffective assistance of counsel claim. Indeed, the very

essence of such motions requires the BIA to consider newly submitted evidence and

make a factual determination as to whether counsel’s performance was ineffective.

Therefore, the BIA did not violate 8 C.F.R. § 1003.1(d)(3)(iv).

3. We lack jurisdiction to review the BIA’s refusal to reopen sua sponte

Mwagiru’s immigration proceedings because Mwagiru has not identified a specific

constitutional or legally erroneous premise on which the BIA relied in exercising its

4 discretion. See Menendez-Gonzalez v. Barr, 929 F.3d 1113, 1117 (9th Cir. 2019)

(“[I]f the BIA [] exercise[s] its authority ‘without relying on a constitutionally or

legally erroneous premise, its decision will not be reviewable.’” (internal citation

omitted)).

4. Mwagiru’s contentions that the BIA mischaracterized, oversimplified, and

misstated the evidence, and did not consider all of the evidence in deciding her

motion to reopen are not supported by the record. See Larita-Martinez v. I.N.S., 220

F.3d 1092, 1095 (9th Cir. 2000) (to prevail on a due process challenge, the alien-

petitioner must show error and substantial prejudice). The record reflects that the

BIA reviewed the entire record and relied on Mwagiru’s testimony in reaching its

conclusions. Therefore, the BIA did not abuse its discretion in this regard.

Similarly, the BIA did not abuse its discretion in denying Mwagiru’s motion

to reconsider. Contrary to Mwagiru’s assertion, the record reflects that the BIA

considered all of her arguments and evidence in denying her motion. See Lopez v.

Ashcroft, 366 F.3d 799, 807 n.6 (9th Cir. 2004) (“[T]he [BIA] does not have to write

an exegesis on every contention. What is required is merely that it consider the issues

raised, and announce its decision in terms sufficient to enable a reviewing court to

perceive that it has heard and thought and not merely reacted.”).

PETITIONS DENIED.