NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
Nos. 18-1750 & 18-1970
___________
KINGSLY MENGALLE NGEDE,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A209-991-536)
Immigration Judge: Honorable Walter A. Durling
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 1, 2019
Before: KRAUSE, SCIRICA and NYGAARD, Circuit Judges
(Opinion filed March 13, 2019)
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OPINION*
___________
PER CURIAM
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Kingsly Mengalle Ngede, a citizen of Cameroon, petitions for review of the Board
of Immigration Appeals’ (BIA) final order of removal. For the following reasons, we
will dismiss the petition for review docketed at No. 18-1750, and deny the petition for
review docketed at No. 18-1970.
Ngede was paroled into the United States as an arriving alien in December 2016,
and applied for asylum, withholding of removal, and protection under the United Nations
Convention Against Torture (CAT). His application was based on allegations that he was
targeted by the police for participating in the Southern Cameroon National Council
(SCNC), a political opposition group. In particular, Ngede alleged that the police beat
and kicked him following a conference in October 2015 that he organized. After that
incident, Ngede kept a low profile until February 2016, when his boss convinced him to
come out of hiding. Ngede and his boss then went to the police to demand the release of
the other attendees who had been arrested at the conference. Upon arrival at the police
station, Ngede was arrested for organizing illegal activities. He was detained for two
days in a cell with fetid water. After his release, Ngede went to the hospital, where he
was diagnosed with malaria and typhoid fever, which he believes were contracted while
in detention. In June 2016, the police raided the office where Ngede worked. Ngede was
not there at the time and, when he learned of the raid, he left town and stayed with his
brother until September 2016, when he fled Cameroon.
Ngede, who was represented by counsel, appeared for a hearing before an
Immigration Judge. The IJ denied relief, concluding that Ngede was not credible,
2
primarily because of inconsistencies between his testimony and affidavits from his
mother and his former boss.1 With the assistance of new counsel, Ngede appealed to the
Board of Immigration Appeals. The Board rejected Ngede’s explanations for the
inconsistencies, concluded that the IJ’s refusal to permit his expert witness to testify did
not deprive him of a fair hearing, and stated that he had waived his CAT claim by failing
to pursue it in his brief on appeal. Accordingly, on November 22, 2017, the Board
affirmed and adopted the IJ’s decision. Ngede did not file a petition for review.
Ngede next filed a timely motion to reopen with the Board, presenting new
country conditions evidence and alleging that his prior attorneys provided ineffective
assistance of counsel. The Board denied the motion on March 29, 2018. On April 4,
2018, Ngede, proceeding pro se, filed a petition for review, which was docketed here at
No. 18-1750. Shortly thereafter, on April 16, 2018, the BIA sua sponte issued an
amended decision on Ngede’s motion to reopen. In doing so, the Board vacated its
decision of March 29, 2018, noting that an “administrative error” prevented it from
considering supplemental materials pertaining to ineffective assistance of counsel that
Ngede submitted in support of the motion to reopen. But the Board again denied relief,
concluding that Ngede’s claims did not resolve his lack of credibility, that the country
conditions evidence submitted with the motion to reopen was “generalized” and
1
Ngede’s mother’s affidavit indicated that he was detained from October 2015 until
February 2016, although Ngede testified that he was detained for only two days in
February 2016. And, although Ngede claimed that he and his boss were detained at the
same time, his boss’ affidavit did not mention Ngede’s detention.
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“cumulative,” and that he failed to “show that he was prejudiced by any ineffective
assistance of counsel where he did not … prove a likelihood of persecution or torture.”
Ngede filed another timely pro se petition for review, which was docketed here at No. 18-
1970. The petitions for review have been consolidated for all purposes.
We have jurisdiction to review final orders of removal. 8 U.S.C. § 1252(a)(1).
But in this case, the order entered on March 29, 2018, was rendered moot when the Board
vacated that order and issued a new one in its place. See Ordonez-Tevalan v. Att’y Gen.,
837 F.3d 331, 339 (3d Cir. 2016) (quoting Thomas v. Att’y Gen., 625 F.3d 134, 139 (3d
Cir. 2010) (explaining that if a “subsequent decision substantively altered the ratio
decidendi in its earlier disposition and operated to vacate the BIA’s earlier decision, then
the petition for review of the earlier decision is without effect because there is no longer
any order or decision for the court of appeals to review.”). Accordingly, we will dismiss
the petition for review docketed at No. 18-1750.2 We do have jurisdiction, however, over
the petition for review docketed at No. 18-1970. But, as to that petition, we cannot
review the BIA’s original final order of removal because the petition for review was
timely only as to the denial of reopening on April 16, 2018. See 8 U.S.C. § 1252(b)(1);
McAllister v. Att’y Gen., 444 F.3d 178, 185 (3d Cir. 2006). We review the BIA’s denial
of the motion to reopen for abuse of discretion. See Filja v. Gonzales, 447 F.3d 241, 251
2
This dismissal does not affect the scope of our review, however, because the BIA order
entered April 16, 2018, which we have jurisdiction to review, is effectively identical to
the one that was entered on March 29, 2018.
4
(3d Cir. 2006). Under this standard, we may reverse the BIA’s decision only if it is
“arbitrary, irrational, or contrary to law.” Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d
Cir. 2002) (citation omitted).
The BIA did not abuse its discretion in denying Ngede’s motion to reopen. In
support of that motion, Ngede relied on evidence of country conditions in Cameroon to
support his original theory of persecution. In particular, he included news articles and
NGO reports that describe violent clashes between protestors and government forces in
October 2017. See Administrative Record (A.R.), p. 77-91; 93-150; 152-174. But, aside
from describing recent events, that evidence that does not significantly differ from the
material that Ngede submitted with his original application for relief. See A.R., p. 425
(account of security forces shooting a former SCNC official in 2003); 484 (February
2017 report of a crackdown on anti-government protests); 501 (February 2017 New York
Times article describing violent protests in December 2016). Because the evidence
submitted with the motion to reopen merely demonstrated the persistence of country
conditions asserted in the original application, reopening was not warranted. See Zhao v.
Gonzales, 440 F.3d 405, 407 (7th Cir. 2005) (“cumulative evidence that conditions
asserted in the original application ‘persisted’ is not evidence of changed
circumstances.”). Moreover, the evidence submitted with Ngede’s motion to reopen does
not remedy the IJ’s conclusion that Ngede failed to provide a credible account of the
harm he experienced as a SCNC member. See Zhang v. Mukasey, 543 F.3d 851, 855
(6th Cir. 2008) (stating that the BIA may reasonably expect an alien who is proceeding
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on reopening with the same theory of persecution to attempt to rehabilitate his
credibility).
In addition, the Board properly rejected Ngede’s claim that his attorneys provided
ineffective assistance of counsel. An ineffectiveness claim, if properly established, could
constitute proper grounds for reopening a removal proceeding. See Xu Yong Lu v.
Ashcroft, 259 F.3d 127, 132 (3d Cir. 2001). To prevail on a claim for ineffective
assistance, an alien must show “(1) that he was prevented from reasonably presenting his
case and (2) that substantial prejudice resulted.” Fadiga v. Att’y Gen., 488 F.3d 142, 155
(3d Cir. 2007) (internal quotation marks omitted). Prejudice is a “reasonable likelihood”
that the result of the removal proceedings would have been different had the error not
occurred. See id. at 159.
Ngede claimed that his first attorney did not give him a reasonable opportunity to
examine his supporting documents, including the affidavits from his mother and boss,
before submitting them to the immigration court. He also faulted his second attorney for
failing to raise before the BIA any argument concerning the IJ’s denial of CAT relief.
But Ngede cannot demonstrate that he was prejudiced by those alleged errors because, as
the BIA noted, he is not eligible for asylum, withholding of removal, or CAT relief. See
Denis v. Att’y Gen., 633 F.3d 201, 219 (3d Cir. 2011) (stating that petitioner’s
“ineligibility for CAT relief wholly undermines [his] assertion that the ineffective
assistance of counsel caused substantial prejudice to his otherwise compelling claim.”).
As described above, Ngede claimed that government forces assaulted him one
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time, arrested him and detained him for two days in an unsanitary cell, and raided his
office while he was not there. Clearly, these incidents were objectionable. But the record
evidence neither demonstrates that Ngede suffered past persecution nor shows that he has
a well-founded fear of future persecution.3 See Kibinda v. Att’y Gen., 477 F.3d 113, 123
(3d Cir. 2007) (holding that a five-day detention and beating that required stitches and
left a scar were not “severe enough to constitute persecution under our stringent
standard.”); Njong v. Whitaker, 911 F.3d 919, 923 (8th Cir. 2018) (holding that SCNC
member’s three- and four-day detentions, one of which was accompanied by physical
injuries caused by a beating, did not rise to the level of persecution). Similarly, the
evidence does not compel a finding that Ngede is more likely than not to experience the
type of extreme cruel and inhuman treatment constituting torture if he is removed to
Cameroon. See Shardar v. Ashcroft, 382 F.3d 318, 324 (3d Cir. 2004) (holding BIA did
not err in determining that petitioner, who was “severely beaten,” was not tortured);
Auguste v. Ridge, 395 F.3d 123 (3d Cir. 2005) (fact that Haitian national, if removed to
Haiti, would be detained indefinitely in prison did not rise to level of “torture,” nor did
deplorable conditions in Haitian prisons).
For the foregoing reasons, we will dismiss the petition for review at No. 18-1750,
and deny the petition for review at No. 18-1970.
3
Because Ngede fails to demonstrate eligibility for asylum, he necessarily fails to meet
the clear probability standard required for withholding of removal. See Mudric v. Att’y
Gen., 469 F.3d 94, 102 n. 8 (3d Cir. 2006).
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