Mbugua v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 6, 2023
• Docket: 22-1500
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 6 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOHN MBUGUA, No. 22-1500 Agency No. Petitioner, A027-569-793 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted December 4, 2023** Pasadena, California

Before: WARDLAW and BUMATAY, Circuit Judges, and BENCIVENGO, District Judge.***

John Mbugua, a native and citizen of Ethiopia, petitions for review of the

Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen removal

* 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 Cathy Ann Bencivengo, United States District Judge for the Southern District of California, sitting by designation. proceedings as untimely. We have jurisdiction under 8 U.S.C. § 1252(a)(1). We

review the denial of a motion to reopen removal proceedings for abuse of discretion.

See Agonafer v. Sessions, 859 F.3d 1198, 1203 (9th Cir. 2017). We deny the petition

for review in part and dismiss in part.

A motion to reopen removal proceedings must ordinarily be filed within 90

days of the final order of removal. 8 U.S.C. § 1229a(c)(7)(C)(i). An exception to

this limitation is if the petitioner demonstrates “changed country conditions” in the

country to which he is to be removed. Id. § 1229a(c)(7)(C)(ii). To prevail, the

petitioner must “(1) produce evidence that conditions have changed in the country

of removal; (2) demonstrate that the evidence is material; (3) show that the evidence

was not available and could not have been discovered or presented at the previous

hearing; and (4) demonstrate that the new evidence, when considered together with

the evidence presented at the original hearing, would establish prima facie eligibility

for the relief sought.” Agonafer, 859 F.3d at 1204 (citing Toufighi v. Mukasey, 538

F.3d 988, 996 (9th Cir. 2008)). It is uncontested that Mbugua’s motion to reopen

removal proceedings is untimely—it was filed nearly 29 years after the BIA’s final

order of removal.

1. The BIA held that Mbugua failed to establish changed-country conditions

in his country of nationality. A petitioner must apply for relief based on conditions

arising “in the country of nationality or the country to which removal has been

2 22-1500 ordered.” 8 U.S.C. § 1229a(c)(7)(C)(ii). As Mbugua admitted in his prior

immigration proceedings, Mbugua’s country of nationality is Ethiopia. Ethiopia is

also his country of removal. Mbugua, however, provided evidence of changed-

country conditions in the country of Somalia. For the first time in the motion to

reopen, Mbugua claimed that he is a citizen of Somalia, and that Ethiopia was

improperly designated as his country of removal. But the BIA was right to reject

this claim, which was contradicted by Mbugua’s prior admissions.1 The BIA did not

abuse its discretion by denying the motion to reopen based on Mbugua’s failure to

show changed-country conditions in his nation of removal.

2. The BIA also concluded that Mbugua failed to demonstrate prima facie

eligibility for relief. The Immigration Judge found that Mbugua’s 1986 rape

conviction was a particularly serious crime that rendered him ineligible for

withholding of removal, and was a valid basis to deny Mbugua’s asylum claim.

Mbugua asserts that he is attempting to vacate this conviction, but a mere attempt to

vacate the conviction is too speculative to entitle him to relief. See Silva v. Garland,

993 F.3d 705, 718 (9th Cir. 2021) (recognizing that “a prima facie case . . . cannot

be established from speculative conclusions or vague assertions”) (simplified). The

1 In the prior proceedings, both Mbugua and his counsel told the Immigration Judge that Mbugua was born in Ethiopia and that he is an Ethiopian citizen. The same representations were made in Mbugua’s written brief to the BIA, as well as Mbugua’s original asylum application.

3 22-1500 BIA did not abuse its discretion by concluding that Mbugua is not prima facie

eligible for relief.

3. Mbugua’s claim that the BIA violated his due process rights by denying

his motion to reopen also fails. To prevail on a due process claim, Mbugua must

show that (1) the proceeding was so fundamentally unfair that he was prevented from

reasonably presenting his case, and (2) he demonstrates prejudice. See Vilchez v.

Holder, 682 F.3d 1195, 1199 (9th Cir. 2012). Here, the BIA properly considered his

motion to reopen and ruled that Mbugua did not meet the requirements to excuse its

untimeliness. Mbugua has not identified any unfairness or prejudice in the BIA’s

ruling and so his claim must fail.

4. We have limited jurisdiction to review the BIA’s denial of a motion to

reopen sua sponte, reviewing only to determine whether the BIA based its decision

on legal or constitutional error. See Lona v. Barr, 958 F.3d 1225, 1227 (9th Cir.

2020). Mbugua has failed to raise any colorable legal or constitutional errors in the

BIA’s denial of sua sponte reopening. We thus lack jurisdiction to review that denial

of relief. See id. at 1235 (when the BIA's denial of sua sponte relief “was untainted

by legal or constitutional error . . . there is nothing left for us to review”).

PETITION DENIED IN PART AND DISMISSED IN PART.

4 22-1500