FILED
NOT FOR PUBLICATION
AUG 12 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MOSES MELVIN HUAEMBUKIE, Nos. 14-72646
15-70174
Petitioner,
Agency No. A200-626-279
v.
WILLIAM P. BARR, Attorney General, MEMORANDUM*
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 10, 2020**
San Francisco, California
Before: THOMAS, Chief Judge, and HAWKINS and McKEOWN, Circuit Judges.
Moses Huaembukie, a native and citizen of Papua New Guinea, petitions for
review of two decisions of the Board of Immigration Appeals (“BIA”): one
dismissing his appeal and affirming the Immigration Judge’s (“IJ”) denial of his
application for asylum, withholding of removal, and protection under 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).
Convention Against Torture (“CAT”), and the other denying his motion to reopen.
We have jurisdiction under 8 U.S.C. § 1252, and we deny both petitions for
review.
Because the parties are familiar with the facts of this case, we need not
recount them here. We review for abuse of discretion the BIA’s denial of a motion
to reopen. See Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010). Where a
petition for review of the BIA’s denial of a motion to reopen is based on alleged
ineffective assistance of counsel, the BIA’s findings of fact with respect to the
performance of counsel are reviewed under the substantial evidence standard. See
Lin v. Ashcroft, 377 F.3d 1014, 1024 (9th Cir. 2004).
1. Huaembukie waived all arguments with respect to his petition for
review of the BIA’s dismissal of his appeal regarding his application for asylum,
withholding of removal, and protection under the CAT. He failed to raise any
substantive arguments on the merits of these claims, and we therefore deem them
waived. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259–60 (9th Cir. 1996)
(holding that arguments not raised or sufficiently argued in opening brief are
waived); Christian Legal Soc’y of Univ. of Cal. v. Wu, 626 F.3d 483, 485–86 (9th
Cir. 2010) (reasoning that the content of a brief determines what arguments are
waived).
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2. The BIA did not abuse its discretion in denying Huaembukie’s motion
to reopen because substantial evidence supported its determination that he had not
shown a plausible grounds for relief such that he was prejudiced by the actions of
his former counsel. To prevail on an ineffective assistance of counsel claim, “the
petitioner must demonstrate first that counsel failed to perform with sufficient
competence, and, second, that [he] was prejudiced by counsel’s performance.”
Ahmed v. Mukasey, 548 F.3d 768, 771 (9th Cir. 2008) (quotations and citation
omitted). A petitioner “does not need to show that [he] would win on [his] claims
absent [his] attorneys’ deficient performance,” but he does need to “show
‘plausible grounds for relief.’” Id. (quoting Lin, 377 F.3d at 1027). Nowhere in
his briefing before the BIA or before this Court has Huaembukie demonstrated a
plausible grounds for relief. He cites no evidence or testimony that he could have
provided absent deficient counsel that plausibly could have satisfied his burden of
proof; instead, his arguments focus solely on his former counsel’s performance.
This is insufficient to prevail on his ineffective assistance of counsel claim. See
Martinez-Hernandez v. Holder, 778 F.3d 1086, 1088 (9th Cir. 2015) (denying
petition for review, even assuming inadequate performance by counsel, because
petitioner failed to make “the necessary threshold showing that his claim . . . was
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plausible” (quotations and citations omitted)). Therefore, the BIA did not abuse its
discretion.
PETITION DENIED.
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