Paddy Okoth v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 6, 2022
• Docket: 20-70599
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 6 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

PADDY OSEWE OKOTH, No. 20-70599

Petitioner, Agency Nos. A201-004-925 v.

MERRICK B. GARLAND, Attorney MEMORANDUM* General,

Respondent.

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

Submitted February 14, 2022** San Francisco, California

Before: SILER,*** S.R. THOMAS, and CALLAHAN, Circuit Judges.

Paddy Osewe Okoth (“Okoth”) petitions for review of the Board of

Immigration Appeals’ (“BIA”) denial of his motion to reopen. Okoth also raises 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). *** The Honorable Eugene E. Siler, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. 1 the first time an ineffective assistance of counsel (“IAC”) claim. We have

jurisdiction under 8 U.S.C. § 1252.

A denial of a motion to reopen is reviewed for abuse of discretion. INS v.

Doherty, 502 U.S. 314, 323 (1992). A motion to reopen shall not be granted unless

it is supported by evidence that is material, was unavailable at the last hearing, and

is relevant and specific to the moving party’s underlying claims. See Dada v.

Mukasey, 554 U.S. 1, 14 (2008). The new evidence must show the moving party is

prima facie eligible for the underlying relief sought. Ramirez-Munoz v. Lynch, 816

F.3d 1226, 1228 (9th Cir. 2016). We deny the petition in full because (1) Okoth has

not shown that the BIA abused its discretion in determining that he failed to establish

prima facie eligibility for the relief sought, and (2) Okoth failed to exhaust his IAC

claim.

1. Okoth claims he is entitled to asylum, withholding of removal, and

protection under the Convention Against Torture (“CAT”).

To establish prima facie eligibility for asylum and withholding of removal

Okoth must demonstrate “credible, direct, and specific evidence . . . that would

support a reasonable fear of persecution” if he is returned to Kenya. Nagoulko v.

INS, 333 F.3d 1012, 1016 (9th Cir. 2003). When a petitioner, like Okoth, has not

suffered persecution in the past he must demonstrate an individualized, versus

2 generalized, risk of future persecution. Bhasin v. Gonzales, 423 F.3d 977, 984 (9th

Cir. 2005).

To carry this burden, Okoth largely relies on an affidavit from his father

regarding his father’s eligibility for CAT relief from 2000 and a 2019 Human Rights

Report discussing political turmoil in Kenya, but he did not relate these items to his

own risk of future persecution. Okoth also included transcripts of unauthenticated

text messages from his family discussing violence in Kenya, but he did not provide

a way to authenticate the origin or validity of those messages, nor did he adequately

tie these messages to his claims for relief. The BIA rightly deemed them unreliable.

Espinoza v. INS, 45 F.3d 308, 309 (9th Cir. 1995) (noting that “immigration forms

be authenticated through some recognized procedure.”)

Okoth also attempts to provide this court with additional information

concerning his fear of persecution by filing five news articles detailing political

violence and tribal persecution in Kenya. These reports were not part of the

administrative record, so this court lacks jurisdiction to review them. 8 U.S.C. §

1252(b)(4)(A); Fisher v. INS, 79 F.3d 955, 963-64 (9th Cir. 1996) (en banc).

The documents Okoth supplied to the BIA to demonstrate his eligibility for

relief do not demonstrate an individualized risk of future persecution. In fact, they

are not even individualized to him. In turn, the BIA found that he failed to establish

prima facie eligibility for asylum and withholding of removal. The BIA did not abuse

3 its discretion in so concluding. We deny Okoth’s petition with respect to the BIA’s

denial of the motion to reopen regarding asylum and withholding of removal.

2. Okoth likewise cannot establish that he would be more likely than not

to be tortured upon returning to his home country. Again, he relies on the same

evidence.

As above, Okoth fails to show a “particularized threat of torture.” Dhital v.

Mukasey, 532 F.3d 1044, 1051 (9th Cir. 2008). He has not been tortured in the past

in Kenya. Generalized reference to violence, even torture, in Kenya is not sufficient

to demonstrate that future torture is more likely than not a risk he faces. Okoth relies

on his father’s 2000 grant of CAT protection in support of his claim of eligibility,

but that petition relied on circumstances that are now outdated. Accordingly, we also

deny Okoth’s petition regarding his application for CAT protection.

3. Okoth raises an ineffective assistance issue for the first time in his

opening brief. Accordingly, Okoth failed to properly exhaust his claim before the

agency. See Hernandez v. Sessions, 872 F.3d 976, 988 (9th Cir. 2017).

The petition for review is DENIED.