NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 19 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANNE WANGARI MWAGIRU, No. 17-73354
18-72177
Petitioner,
Agency No. A200-754-599
v.
WILLIAM P. BARR, Attorney General, MEMORANDUM*
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 6, 2020**
Seattle, Washington
Before: IKUTA and R. NELSON, Circuit Judges, and OLIVER,*** District Judge.
In these consolidated petitions for review, Anne Wangari Mwagiru, a native
and citizen of Kenya, seeks review of the Board of Immigration Appeals’s (“BIA”)
orders denying her motion to reopen and denying her motion to reconsider. As 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).
***
The Honorable Solomon Oliver, Jr., United States District Judge for
the Northern District of Ohio, sitting by designation.
parties are familiar with the facts, we do not recount them here. We have jurisdiction
under 8 U.S.C. § 1252. We review the denial of motions to reopen or reconsider for
abuse of discretion. Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir. 2005). We
review factual findings for substantial evidence and review questions of law de novo.
Id. at 791–92. We deny the petitions for review in both cases, 17-73354 and 18-
72177.
1. There is no dispute that Mwagiru’s motion to reopen was untimely; it was
filed almost three years after the deadline. See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R.
§ 1003.2(c)(2). The BIA did not abuse its discretion in finding that equitable tolling
was not warranted because, as explained below, Mwagiru did not provide an
adequate basis to excuse the untimeliness of her motion. See Iturribarria v. I.N.S.,
321 F.3d 889, 897 (9th Cir. 2003) (we recognize “equitable tolling of deadlines and
numerical limits on motions to reopen or reconsider during periods when a petitioner
is prevented from filing because of deception, fraud, or error . . .”).
Mwagiru argued that equitable tolling was warranted based on the ineffective
assistance of her prior attorneys. However, the record clearly shows, and substantial
evidence supports the BIA’s finding, that she failed to show that her former
attorneys’ performance was inadequate and failed to show prejudice. See
Mohammed, 400 F.3d at 793–94 (to prevail on an ineffective assistance of counsel
claim, an alien must show that counsel failed to perform with sufficient competence
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and that she was prejudiced by counsel’s performance; prejudice results when
counsel’s performance was so inadequate that it may have affected the outcome of
the proceedings). Therefore, the BIA did not abuse its discretion in denying
Mwagiru’s untimely motion to reopen on this basis.
The BIA did not abuse its discretion in finding that Mwagiru failed to comply
with Matter of Lozada.1 Though Matter of Lozada does not require an applicant to
file a bar complaint, Mwagiru’s explanation for her failure to file a complaint against
her first former counsel was unsatisfactory and contrary to Lozada’s purpose
because it was inconsistent with other statements she made in the record. Compare
Admin. R. at 369 (testifying that her first former counsel told her to document her
asylum claim and communicate it to new counsel in response to the question “[h]ave
you filed any type of bar complaint against this attorney who you had previously?”),
with Admin. R. at 110–11 (claiming that she did not file a bar complaint against her
first former counsel because he was “kind of tough” and she believed that he was
“the kind of person who c[ould] start making things tough for [her]”). The purpose
of Lozada is to ensure that “an adequate factual basis exists in the record for an
ineffectiveness complaint,” to deter meritless claims, Castillo-Perez v. I.N.S., 212
1
Matter of Lozada provides that a petitioner alleging ineffective assistance of
counsel should, among other things, show that a complaint against prior counsel
was filed with the proper disciplinary authorities or explain why no such complaint
was filed. 19 I. & N. Dec. 637, 639 (B.I.A. 1988).
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F.3d 518, 526 (9th Cir. 2000), and “to protect against the collusive use by aliens and
their counsel of ineffective assistance of counsel claims to achieve delay,” Lo v.
Ashcroft, 341 F.3d 934, 938 (9th Cir. 2003). The record reflects that there was no
factual basis to support Mwagiru’s ineffective assistance of counsel claim against
her first former counsel. Further, Mwagiru’s inconsistent explanations suggest that
her ineffective assistance of counsel claim against her first attorney is aimed at
achieving delay.
2. Contrary to Mwagiru’s assertion, the BIA did not engage in impermissible
factfinding in violation of 8 C.F.R. § 1003.1(d)(3)(iv) in concluding that she was not
a member of her proposed particular social group—married Kenyan women who are
unable to leave a relationship. See 8 C.F.R. § 1003.1(d)(3)(iv) (“[T]he Board will
not engage in factfinding in the course of deciding appeals.”). That regulation neither
states nor implies that the BIA cannot engage in factfinding in deciding a motion to
reopen on the basis of an ineffective assistance of counsel claim. Indeed, the very
essence of such motions requires the BIA to consider newly submitted evidence and
make a factual determination as to whether counsel’s performance was ineffective.
Therefore, the BIA did not violate 8 C.F.R. § 1003.1(d)(3)(iv).
3. We lack jurisdiction to review the BIA’s refusal to reopen sua sponte
Mwagiru’s immigration proceedings because Mwagiru has not identified a specific
constitutional or legally erroneous premise on which the BIA relied in exercising its
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discretion. See Menendez-Gonzalez v. Barr, 929 F.3d 1113, 1117 (9th Cir. 2019)
(“[I]f the BIA [] exercise[s] its authority ‘without relying on a constitutionally or
legally erroneous premise, its decision will not be reviewable.’” (internal citation
omitted)).
4. Mwagiru’s contentions that the BIA mischaracterized, oversimplified, and
misstated the evidence, and did not consider all of the evidence in deciding her
motion to reopen are not supported by the record. See Larita-Martinez v. I.N.S., 220
F.3d 1092, 1095 (9th Cir. 2000) (to prevail on a due process challenge, the alien-
petitioner must show error and substantial prejudice). The record reflects that the
BIA reviewed the entire record and relied on Mwagiru’s testimony in reaching its
conclusions. Therefore, the BIA did not abuse its discretion in this regard.
Similarly, the BIA did not abuse its discretion in denying Mwagiru’s motion
to reconsider. Contrary to Mwagiru’s assertion, the record reflects that the BIA
considered all of her arguments and evidence in denying her motion. See Lopez v.
Ashcroft, 366 F.3d 799, 807 n.6 (9th Cir. 2004) (“[T]he [BIA] does not have to write
an exegesis on every contention. What is required is merely that it consider the issues
raised, and announce its decision in terms sufficient to enable a reviewing court to
perceive that it has heard and thought and not merely reacted.”).
PETITIONS DENIED.
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