Hundessa Jola v. Garland ( 2023 )

Case: 22-60044 Document: 00516624128 Page: 1 Date Filed: 01/26/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
No. 22-60044
FILED
January 26, 2023
Summary Calendar
Lyle W. Cayce
Clerk
Henok Hundessa Jola,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
Agency No. A215 911 845
Before King, Higginson, and Willett, Circuit Judges.
Per Curiam:*
Henok Hundessa Jola, a native and citizen of Ethiopia, seeks review of
a decision of the Board of Immigration Appeals denying his motion to reopen
his immigration proceedings.
Review of a motion to reopen is disfavored. Lara v. Trominski, 216
F.3d 487, 496 (5th Cir. 2000). Accordingly, we review such denials under a
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-60044 Document: 00516624128 Page: 2 Date Filed: 01/26/2023
No. 22-60044
“highly deferential abuse of discretion standard.” Id. This standard requires
a ruling to stand, even if we conclude that it is erroneous, “so long as it is not
capricious, racially invidious, utterly without foundation in the evidence, or
otherwise so irrational that it is arbitrary rather than the result of any
perceptible rational approach.” Zhao v. Gonzales, 404 F.3d 295, 304 (5th Cir.
2005) (internal quotation marks and citation omitted).
The Board did not abuse its discretion by denying Jola’s motion. A
successful motion to reopen must be based on evidence that is both material
and previously unavailable. See I.N.S. v. Doherty, 502 U.S. 314, 323 (1992).
Here, Jola has not shown that evidence relating to translation errors was
previously unavailable. Nor has he shown that the new evidence he submitted
with his motion materially relates to the specific negative credibility factors
that initially doomed his claim. And while Jola disputes the merits of the
negative credibility factors directly, those arguments are not properly before
us. See Guevara v. Gonzales, 450 F.3d 173, 176 (5th Cir. 2006).
Jola also has not shown that reopening is warranted based on the
actions of his prior counsel. Ineffective assistance requires “a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” See Diaz v. Sessions, 894 F.3d 222,
228 (5th Cir. 2018) (internal quotation marks and citation omitted). Here,
Jola has not shown that the actions of his prior counsel directly relate to the
specific negative credibility factors that the Board relied on.
Jola’s petition is DISMISSED in part and DENIED in part.
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