Moses Huaembukie v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 12, 2020
• Docket: 14-72646
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION AUG 12 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MOSES MELVIN HUAEMBUKIE, Nos. 14-72646 15-70174 Petitioner, Agency No. A200-626-279 v.

WILLIAM P. BARR, Attorney General, MEMORANDUM*

Respondent.

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

Submitted August 10, 2020** San Francisco, California

Before: THOMAS, Chief Judge, and HAWKINS and McKEOWN, Circuit Judges.

Moses Huaembukie, a native and citizen of Papua New Guinea, petitions for

review of two decisions of the Board of Immigration Appeals (“BIA”): one

dismissing his appeal and affirming the Immigration Judge’s (“IJ”) denial of his

application for asylum, withholding of removal, and protection under 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). Convention Against Torture (“CAT”), and the other denying his motion to reopen.

We have jurisdiction under 8 U.S.C. § 1252, and we deny both petitions for

review.

Because the parties are familiar with the facts of this case, we need not

recount them here. We review for abuse of discretion the BIA’s denial of a motion

to reopen. See Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010). Where a

petition for review of the BIA’s denial of a motion to reopen is based on alleged

ineffective assistance of counsel, the BIA’s findings of fact with respect to the

performance of counsel are reviewed under the substantial evidence standard. See

Lin v. Ashcroft, 377 F.3d 1014, 1024 (9th Cir. 2004).

1. Huaembukie waived all arguments with respect to his petition for

review of the BIA’s dismissal of his appeal regarding his application for asylum,

withholding of removal, and protection under the CAT. He failed to raise any

substantive arguments on the merits of these claims, and we therefore deem them

waived. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259–60 (9th Cir. 1996)

(holding that arguments not raised or sufficiently argued in opening brief are

waived); Christian Legal Soc’y of Univ. of Cal. v. Wu, 626 F.3d 483, 485–86 (9th

Cir. 2010) (reasoning that the content of a brief determines what arguments are

waived).

2 2. The BIA did not abuse its discretion in denying Huaembukie’s motion

to reopen because substantial evidence supported its determination that he had not

shown a plausible grounds for relief such that he was prejudiced by the actions of

his former counsel. To prevail on an ineffective assistance of counsel claim, “the

petitioner must demonstrate first that counsel failed to perform with sufficient

competence, and, second, that [he] was prejudiced by counsel’s performance.”

Ahmed v. Mukasey, 548 F.3d 768, 771 (9th Cir. 2008) (quotations and citation

omitted). A petitioner “does not need to show that [he] would win on [his] claims

absent [his] attorneys’ deficient performance,” but he does need to “show

‘plausible grounds for relief.’” Id. (quoting Lin, 377 F.3d at 1027). Nowhere in

his briefing before the BIA or before this Court has Huaembukie demonstrated a

plausible grounds for relief. He cites no evidence or testimony that he could have

provided absent deficient counsel that plausibly could have satisfied his burden of

proof; instead, his arguments focus solely on his former counsel’s performance.

This is insufficient to prevail on his ineffective assistance of counsel claim. See

Martinez-Hernandez v. Holder, 778 F.3d 1086, 1088 (9th Cir. 2015) (denying

petition for review, even assuming inadequate performance by counsel, because

petitioner failed to make “the necessary threshold showing that his claim . . . was

3 plausible” (quotations and citations omitted)). Therefore, the BIA did not abuse its

discretion.

PETITION DENIED.