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Mwangi v. Barr

United States Court of Appeals, Eighth Circuit

August 19, 2019

Ibrahim Kariuki Mwangi Petitioner
William P. Barr, Attorney General of the United States Respondent

          Submitted: April 18, 2019

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

          Before LOKEN, WOLLMAN, and STRAS, Circuit Judges.


         Ibrahim Mwangi, a citizen of Kenya, was admitted to the United States in 1998 and overstayed his student visa. After his fourth arrest for driving under the influence, the Department of Homeland Security (DHS) commenced removal proceedings. Mwangi applied for asylum, withholding of removal, and relief under the Convention Against Torture (CAT), alleging fear he would be killed if he returned to Kenya "because of owning land" and because he belonged to the Kikuyu tribe.

         After a hearing, the immigration judge (IJ) ordered Mwangi removed to Kenya; the Board of Immigration Appeals (BIA) affirmed the IJ's decision on July 22, 2016. With new counsel, Mwangi filed a motion to reopen on December 22, 2017, alleging ineffective assistance of his former counsel. A motion to reopen must be filed "within 90 days of the date of entry of a final administrative order of removal." 8 U.S.C. § 1229a(c)(7)(C)(i); see 8 C.F.R. § 1003.2(c)(2). Mwangi now petitions for review of the BIA's denial of his untimely motion to reopen. Reviewing that decision for abuse of discretion, we deny the petition for review. See Valencia v. Holder, 657 F.3d 745, 748 (8th Cir. 2011) (standard of review).

         At the removal hearing, Mwangi testified that he and his parents, brothers, and sisters inherited five acres of land from his grandfather in 1993. Mwangi's uncles (his mother's brothers) then hired the Mungikis, "a very violent, extremely violent gang," to attack Mwangi's family to force them off their land. In support, Mwangi's former counsel submitted an affidavit purportedly written by a Kenyan art professor and several letters purportedly written by a local chief in Kenya.

         The IJ denied Mwangi's application for asylum because it was filed more than one year after his last arrival in the United States. The IJ denied withholding of removal because he found Mwangi's testimony not credible, and because Mwangi had not shown an objectively reasonable fear of future persecution on account of his membership in a particular social group if he was removed to Kenya. See 8 U.S.C. § 1231(b)(3). Mwangi filed motions to reopen and for reconsideration which the IJ denied. The BIA affirmed the IJ's decision on the merits without reaching the question of Mwangi's credibility. The BIA then denied Mwangi's untimely motion to reopen for two reasons: first, Mwangi had not "demonstrated due diligence" in filing the motion seventeen months after the BIA's merits decision; second, Mwangi had not shown prejudice -- that more effective assistance of counsel "would have changed the outcome of this proceeding."

         In his petition for review, Mwangi argues the BIA erred in (1) failing to treat his motion to reopen as unopposed; (2) concluding he was not prejudiced by former counsel's ineffective assistance; (3) concluding he did not exercise due diligence in moving to reopen; and (4) failing to rule on his due process argument. We will address these issues in that order.

         (1) Mwangi argues the BIA should have treated his motion to reopen as unopposed because DHS requested an extension of time to review the motion but never filed an opposition brief. The Attorney General's procedural regulation states that "[a] motion shall be deemed unopposed unless a timely response is made." 8 C.F.R. § 1003.3(g)(3). But it does not state that the BIA must grant an unopposed motion. The Second Circuit has rejected the argument that denial of an unopposed, non-frivolous motion to reopen is presumptively an abuse of discretion because "the burden is on the movant to establish his entitlement to reopening and there is no statutory or regulatory requirement that the Government file an opposition." Saydur v. Holder, 597 Fed.Appx. 14, 16 (2d Cir. 2015). We agree. The regulations require BIA members to "exercise their independent judgment and discretion in considering and determining the cases coming before the Board." 8 C.F.R. § 1003.1(d)(1)(ii). Here, the BIA did not abuse its discretion in ruling on the merits of Mwangi's motion.

         (2) In an affidavit supporting his motion to reopen, Mwangi alleged that former counsel torpedoed his asylum claims by hiring an art professor to testify about Kenyan land disputes and by instructing Mwangi to keep saying that he belonged to a "particular social group" if he didn't know the answer to the IJ's questions. Mwangi also alleged that former counsel improperly pocketed $2000 of the $2500 Mwangi paid to hire the art professor and improperly attempted to access Mwangi's bank and retirement accounts while Mwangi was detained.[1]

         The BIA did not abuse its discretion in concluding that Mwangi failed to show that former counsel's incompetence prejudiced his asylum and withholding of removal claims. Mwangi's central persecution claim is that his uncles hired a criminal gang to attack his family because they wanted to steal the family's land. Though his original asylum application also claimed that he fears persecution because he is "from the Kikuyu tribe," Mwangi testified that his family has been persecuted because of the land that they own, and his affidavit accompanying the motion to reopen alleged there are "people who want to kill me, solely because I am inheriting land," not because he is a Kikuyu. Mwangi is related by blood to the uncles he fears. And his former attorney submitted an Australian government report stating that the Mungiki - the criminal gang his uncles allegedly hired to attack his family -- "are almost exclusively Kikuyu" and "seek a revival of Kikuyu culture."

         As the IJ noted in denying Mwangi's initial motion for reconsideration, Mwangi's claim, "even if supported by credible testimony, does not support a claim for asylum and withholding of removal." His claim is simply "that he is involved in a personal land dispute with his uncles," not that he has been or will be persecuted because he is a member of a particular social group. Thus, a reopened removal proceeding correcting the alleged failings of Mwangi's former attorney -- that he damaged Mwangi's credibility by coaching him to repeat the term "protected social group," and procured an "expert" witness with no expertise relating to "ongoing violence in Kenya related to land disputes" -- would not have cured the basic flaws in Mwangi's asylum and withholding of removal claims.[2]

         (3) An IJ and the BIA have discretion to equitably toll the 90-day deadline for filing a motion to reopen if the movant shows that he exercised due diligence. Equitable tolling "is not available to those who sleep on their rights." Valencia, 657 F.3d at 748. The BIA ruled that Mwangi did not exercise due diligence in not filing the motion to reopen until seventeen months after his removal order ...

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