Charles Migwi v. Jefferson Sessions, III

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 31, 2018
• Docket: 15-72718
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 31 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CHARLES KIAMA MIGWI, No. 15-72718

Petitioner, Agency No. A088-544-277

v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General,

Respondent.

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

Submitted August 29, 2018** Seattle, Washington

Before: HAWKINS, McKEOWN, and W. FLETCHER, Circuit Judges.

Charles Kiama Migwi, a native and citizen of Kenya, seeks review of the

Board of Immigration Appeals’ (“BIA”) denial of his motion to reopen deportation

proceedings. We have jurisdiction under 8 U.S.C. § 1252(a)(1). Reviewing for

* 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). abuse of discretion, Singh v. INS, 213 F.3d 1050, 1052 (9th Cir. 2000), we deny the

petition for review.

The BIA did not abuse its discretion in concluding Migwi’s motion was not

eligible for equitable tolling because Migwi failed to establish that he acted with due

diligence to definitively learn of his former attorney’s ineffectiveness. See Singh v.

Gonzales, 491 F.3d 1090, 1096–97 (9th Cir. 2007) (waiting six months after

developing initial suspicions of attorney’s fraud before consulting new counsel).

Moreover, even if Migwi had acted with due diligence, he did not comply with the

Lozada requirements; rather, Migwi did not describe the nature and scope of his

attorney representation agreement and did not file—or suitably explain why he did

not file—a bar complaint against his former attorney. See Matter of Lozada, 19 I. &

N. Dec. 637, 639 (BIA 1988); see also Castillo-Perez v. INS, 212 F.3d 518, 525 (9th

Cir. 2000) (Lozada requirements are generally reasonable, and under ordinary

circumstances the BIA does not abuse its discretion when it denies reopening where

the petitioner fails to meet them.).

The BIA also did not abuse its discretion in concluding that Migwi did not

proffer material and previously unavailable evidence supporting changed

circumstances in Kenya. See 8 C.F.R. § 1003.2(c)(3)(ii). Specifically, the doctor’s

declaration, family affidavits, and country reports were either not relevant or too

vague to be material to Migwi’s prima facie case for relief. See, e.g., Wakkary v.

2 Holder, 558 F.3d 1049, 1065 (9th Cir. 2009) (petitioners must show an

individualized risk of future persecution or a pattern or practice of persecution

against similarly situated persons).

PETITION DENIED.