NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 6 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PADDY OSEWE OKOTH, No. 20-70599
Petitioner,
Agency Nos. A201-004-925
v.
MERRICK B. GARLAND, Attorney MEMORANDUM*
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 14, 2022**
San Francisco, California
Before: SILER,*** S.R. THOMAS, and CALLAHAN, Circuit Judges.
Paddy Osewe Okoth (“Okoth”) petitions for review of the Board of
Immigration Appeals’ (“BIA”) denial of his motion to reopen. Okoth also raises for
*
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 Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
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the first time an ineffective assistance of counsel (“IAC”) claim. We have
jurisdiction under 8 U.S.C. § 1252.
A denial of a motion to reopen is reviewed for abuse of discretion. INS v.
Doherty, 502 U.S. 314, 323 (1992). A motion to reopen shall not be granted unless
it is supported by evidence that is material, was unavailable at the last hearing, and
is relevant and specific to the moving party’s underlying claims. See Dada v.
Mukasey, 554 U.S. 1, 14 (2008). The new evidence must show the moving party is
prima facie eligible for the underlying relief sought. Ramirez-Munoz v. Lynch, 816
F.3d 1226, 1228 (9th Cir. 2016). We deny the petition in full because (1) Okoth has
not shown that the BIA abused its discretion in determining that he failed to establish
prima facie eligibility for the relief sought, and (2) Okoth failed to exhaust his IAC
claim.
1. Okoth claims he is entitled to asylum, withholding of removal, and
protection under the Convention Against Torture (“CAT”).
To establish prima facie eligibility for asylum and withholding of removal
Okoth must demonstrate “credible, direct, and specific evidence . . . that would
support a reasonable fear of persecution” if he is returned to Kenya. Nagoulko v.
INS, 333 F.3d 1012, 1016 (9th Cir. 2003). When a petitioner, like Okoth, has not
suffered persecution in the past he must demonstrate an individualized, versus
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generalized, risk of future persecution. Bhasin v. Gonzales, 423 F.3d 977, 984 (9th
Cir. 2005).
To carry this burden, Okoth largely relies on an affidavit from his father
regarding his father’s eligibility for CAT relief from 2000 and a 2019 Human Rights
Report discussing political turmoil in Kenya, but he did not relate these items to his
own risk of future persecution. Okoth also included transcripts of unauthenticated
text messages from his family discussing violence in Kenya, but he did not provide
a way to authenticate the origin or validity of those messages, nor did he adequately
tie these messages to his claims for relief. The BIA rightly deemed them unreliable.
Espinoza v. INS, 45 F.3d 308, 309 (9th Cir. 1995) (noting that “immigration forms
be authenticated through some recognized procedure.”)
Okoth also attempts to provide this court with additional information
concerning his fear of persecution by filing five news articles detailing political
violence and tribal persecution in Kenya. These reports were not part of the
administrative record, so this court lacks jurisdiction to review them. 8 U.S.C. §
1252(b)(4)(A); Fisher v. INS, 79 F.3d 955, 963-64 (9th Cir. 1996) (en banc).
The documents Okoth supplied to the BIA to demonstrate his eligibility for
relief do not demonstrate an individualized risk of future persecution. In fact, they
are not even individualized to him. In turn, the BIA found that he failed to establish
prima facie eligibility for asylum and withholding of removal. The BIA did not abuse
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its discretion in so concluding. We deny Okoth’s petition with respect to the BIA’s
denial of the motion to reopen regarding asylum and withholding of removal.
2. Okoth likewise cannot establish that he would be more likely than not
to be tortured upon returning to his home country. Again, he relies on the same
evidence.
As above, Okoth fails to show a “particularized threat of torture.” Dhital v.
Mukasey, 532 F.3d 1044, 1051 (9th Cir. 2008). He has not been tortured in the past
in Kenya. Generalized reference to violence, even torture, in Kenya is not sufficient
to demonstrate that future torture is more likely than not a risk he faces. Okoth relies
on his father’s 2000 grant of CAT protection in support of his claim of eligibility,
but that petition relied on circumstances that are now outdated. Accordingly, we also
deny Okoth’s petition regarding his application for CAT protection.
3. Okoth raises an ineffective assistance issue for the first time in his
opening brief. Accordingly, Okoth failed to properly exhaust his claim before the
agency. See Hernandez v. Sessions, 872 F.3d 976, 988 (9th Cir. 2017).
The petition for review is DENIED.
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