FILED
NOT FOR PUBLICATION
MAR 06 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HACI KURT, No. 10-71558
Petitioner, Agency No. A072-117-555
v.
MEMORANDUM*
JEFFREY B. SESSIONS, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submission Deferred December 11, 2014;
Submitted March 6, 2017**
Pasadena, California
Before: GILMAN,*** GRABER, and CALLAHAN, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 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 Ronald Lee Gilman, Senior Circuit Judge for the U.S.
Court of Appeals for the Sixth Circuit, sitting by designation.
Haci Kurt petitions for review of the Board of Immigration Appeals’
(“BIA”) denial of his motion to reopen based on ineffective assistance of counsel.
The BIA held that (1) Kurt suffered no prejudice from his attorney’s alleged
ineffectiveness, and (2) Kurt was not entitled to equitable tolling. We have
jurisdiction under 8 U.S.C. § 1252, and we deny the petition.
1. We review questions of law, including claims of ineffective assistance
of counsel, de novo. Mohammed v. Gonzales, 400 F.3d 785, 791–92 (9th Cir.
2005). To establish ineffective assistance of counsel, a petitioner must prove that
(1) his attorney acted incompetently and (2) the error was prejudicial to the
petitioner’s case. Id. at 793. “[P]rejudice results when the performance of counsel
was so inadequate that it may have affected the outcome of the proceedings.” Id. at
793–94 (internal quotation marks omitted). Kurt alleges that he was prejudiced by
his prior attorney’s failure to argue, despite the immigration judge’s finding that
Kurt lacked credibility, that Kurt had shown a genuine fear of future persecution
based solely on documentary evidence. See Al-Harbi v. INS, 242 F.3d 882, 894
(9th Cir. 2001). Such an argument would not have affected the outcome of these
Because the parties are familiar with the facts and procedural history, we
do not restate them here except as necessary to explain our decision.
The Ninth Circuit dismissed Kurt’s prior petition and held that the
agency’s adverse credibility determination rested on substantial evidence. Kurt v.
Holder, 324 F. App’x 650, 651 (9th Cir. 2009) (unpublished).
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proceedings. The documentary evidence presented in Al-Harbi showed concrete
threats specific to a small group of evacuees, including the petitioner. Id. at 887.
By contrast, Kurt’s documentary evidence relates to Kurds generally and most of it
is at least fifteen years old. Unlike the petitioner in Al-Harbi, Kurt did not present
the type of focused documentation that would compel a finding of future
persecution.
2. We review for abuse of discretion the BIA’s denial of equitable
tolling. See Jones v. Blanas, 393 F.3d 918, 926 (9th Cir. 2004). Because Kurt has
not shown that raising an Al-Harbi argument would have made any difference in
the outcome of his case, the BIA did not abuse its discretion in denying equitable
tolling. Singh v. Holder, 658 F.3d 879, 887–88 (9th Cir. 2011).
PETITION DENIED.
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