Omolo Okemba v. Attorney General United States ( 2021 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 20-3004
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OMOLO NYAGUTI OKEMBA,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA
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On Petition for Review of a
Decision of the Board of Immigration Appeals
(BIA- 1: A201-075-069)
Immigration Judge: Annie S. Garcy
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Submitted Under Third Circuit LAR 34.1(a)
November 9, 2021
Before: HARDIMAN, MATEY, and SCIRICA, Circuit Judges.
(Filed: December 20, 2021)
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OPINION
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
This disposition is not an opinion of the full Court and, under I.O.P. 5.7, does not
constitute binding precedent.
MATEY, Circuit Judge.
Omolo Okemba overstayed his visa. Removal proceedings followed, and he
accepted voluntary departure. Changing his mind, he sought to reopen his case, but his
motion was denied as untimely, and the Board of Immigration Appeals (“BIA”) dismissed
his appeal. Because the BIA did not abuse its discretion, we will deny his petition for
review.
I. BACKGROUND
Okemba, a native of Kenya, entered the United States in 2012. After overstaying his
visa, he was placed into removal proceedings. During the process, he moved to New Jersey
with his first wife, then to Pittsburgh after that marriage failed. While in Pittsburgh, he
hired counsel to handle his removal case, explaining that he intended to re-marry when his
divorce finalized. According to Okemba, counsel never asked questions that may have led
to an asylum claim. A significant error, he maintains, as he fears returning to Kenya
“because of his membership in a community self-help group called ‘Future Rarieda Youth
Group.’” (A.R. at 19–20.) But Okemba’s counsel disputes that claim, and adds that
Okemba was “unresponsive to multiple requests for information over a long period of
time.” (A.R. at 90.)
Okemba sought, and received, several continuances to finalize his divorce and
remarry, at which time his new spouse would file an I-130. Following months without
progress, the Immigration Judge (“IJ”) decided that Okemba had to choose between
voluntary departure and a removal order. After consulting counsel, Okemba chose
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voluntary departure. On August 29, 2019, the IJ ordered that Okemba be granted voluntary
departure.
Okemba then hired a new attorney, moved to reopen his case, and applied for
asylum. But he did not file his motion until December 11, 2019—two weeks after the
motion’s ninety-day statutory filing deadline had expired—despite retaining new counsel
four weeks earlier, see 8 U.S.C. § 1229a(c)(7)(C)(i). The IJ denied the motion, finding that
Okemba had not established an exception to the timeliness requirement, and the BIA
dismissed on that basis. This timely petition followed.1
II. DISCUSSION
We review the denial of a motion to reopen removal proceedings for abuse of
discretion. Alzaarir v. Att’y Gen. of U.S., 639 F.3d 86, 89 (3d Cir. 2011) (per curiam);
Sevoian v. Ashcroft, 290 F.3d 166, 170–71 (3d Cir. 2002). Findings of fact are reviewed
for substantial evidence, Sevoian, 290 F.3d at 171, an “extraordinarily deferential”
standard, Romero v. Att’y Gen. of U.S., 972 F.3d 334, 342 (3d Cir. 2020) (quoting Garcia
v. Att’y Gen. of U.S., 665 F.3d 496, 502 (3d Cir. 2011), as amended (Jan. 13, 2012)).
Okemba blames his late filing on ineffective assistance of counsel, a legal claim we review
de novo. Fadiga v. Att’y Gen. of U.S., 488 F.3d 142, 153 (3d Cir. 2007).
A.
Congress established a ninety-day time limit to reopen a removal order. 8 U.S.C.
§ 1229a(c)(7)(C)(i). Movants seeking untimely reopening of proceedings bear the burden
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The BIA had jurisdiction over the appeal from the IJ’s decision under 8 C.F.R.
§ 1003.1(b)(3) and we have jurisdiction under 8 U.S.C. § 1252.
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of demonstrating eligibility for the requested relief. Pllumi v. Att’y Gen. of U.S., 642 F.3d
155, 161 (3d Cir. 2011). Applicants for asylum or withholding of removal may move to
reopen at any time—even after the ninety-day deadline—if their applications are based on
“changed country conditions arising in the country of nationality or . . . to which removal
has been ordered.” 8 U.S.C. § 1229a(c)(7)(C)(ii) (noting that “changed country conditions”
can form the basis of relief “if such evidence is material and was not available and would
not have been discovered or presented at the previous proceeding”); Pllumi, 642 F.3d at
161. We have also held that the deadline for filing motions to reopen may be equitably
tolled. See Alzaarir, 639 F.3d at 90. To toll the deadline for ineffective assistance of
counsel, allegations must be “substantiated and accompanied by a showing of [petitioner’s]
due diligence.” Id.Okemba’s motion to reopen was late. The IJ issued her final decision on August 29,
2019, so Okemba’s motion was due ninety days later, November 27, 2019. But he filed on
December 11, 2019. Okemba never claimed that his motion “f[ell] within any exception”
to the ninety-day deadline or “should be considered timely for any other reason.” (A.R. at
3.) Indeed, he never explained why he filed late. Accordingly, the BIA properly dismissed
Okemba’s motion.
We can only review claims raised before the BIA. See 8 U.S.C. § 1252(d)(1)
(providing for judicial review of removal orders “only if” the applicant has “exhausted all
administrative remedies”); Kibinda v. Att’y Gen. of U.S., 477 F.3d 113, 120 n.8 (3d Cir.
2007) (“[Petitioner] did not make any such claim before the IJ or BIA and cannot raise that
claim for the first time in a petition for review. This statutory [exhaustion] requirement [is]
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intended to ensure that the BIA has had a full opportunity to consider a claim before it is
submitted to a federal court.”). Because Okemba never argued equitable tolling, due
diligence, or changed circumstances in Kenya before the BIA to explain his untimely
petition, we cannot review those issues. See Lin v. Att’y Gen. of U.S., 543 F.3d 114, 121
(3d Cir. 2008) (requiring petitioners to “place the [BIA] on notice of a straightforward issue
being raised on appeal”).
B.
But even if Okemba had not waived his claim, it would have failed on the merits.
Ineffective assistance warranting a motion to reopen carries procedural and
substantive requirements. The movant must first file an affidavit detailing the facts alleged
to show ineffective assistance and must allow counsel to respond. Fadiga, 488 F.3d at 155;
see Matter of Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988). Okemba satisfied this initial
step. So we move to the second step and consider whether Okemba has actually established
both ineffective assistance and prejudice. Fadiga, 488 F.3d at 157. He has not.
Okemba faults counsel’s failure to explain all the consequences of voluntary
departure. For example, he alleges he did not know that voluntary departure would prevent
an asylum application. And he claims his attorney told him that there was nothing to be
done after the voluntary departure order, ignoring the possibility of a motion to reopen.2
But we agree with the IJ that Okemba falls short of the necessary showing. The IJ pointed
2
We note that advising Okemba to move to reopen with no change in country
condition or family status ran the risk of cancelling his voluntary departure. See 8 C.F.R.
§ 1240.26(d), (i); see also Dada v. Mukasey, 554 U.S. 1, 21 (2008). That could well explain
counsel’s strategy.
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to counsel’s denial of these accusations explaining Okemba was screened for asylum
claims but, contrary to advice, chose to pursue only the marriage argument. And counsel
pinned any delays in filing on Okemba’s unresponsiveness. Delays, the IJ concluded,
extending to Okemba’s failure to timely file the I-130.
These determinations rest on substantial evidence. The IJ properly weighed
Okemba’s testimony against that of the attorney and found the attorney’s account more
persuasive. We will not disturb that finding relied on by the BIA.
III. CONCLUSION
The BIA did not abuse its discretion in dismissing Okemba’s appeal. We will deny
the petition.
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