Nemmy Matiru v. Jefferson B. Sessions, III , 705 F. App'x 476 ( 2017 )

United States Court of Appeals
For the Eighth Circuit
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No. 16-3054
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Nemmy James Ngugi Matiru
lllllllllllllllllllllPetitioner
v.
Jefferson B. Sessions, III, Attorney General of the United States
lllllllllllllllllllllRespondent
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No. 17-1007
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Nemmy James Ngugi Matiru
lllllllllllllllllllllPetitioner
v.
Jefferson B. Sessions, III, Attorney General of the United States
lllllllllllllllllllllRespondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: December 7, 2017
Filed: December 12, 2017
[Unpublished]
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Before GRUENDER, BOWMAN, and BENTON, Circuit Judges.
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PER CURIAM.
In this consolidated matter, Kenyan citizen Nemmy James Ngugi Matiru
petitions for review of orders of the Board of Immigration Appeals (BIA). Having
jurisdiction under 8 U.S.C. § 1252, this court denies the petition.
The BIA dismissed Matiru’s appeal from the decision of an immigration judge
(IJ), which sustained a charge of removability under 8 U.S.C. § 1227(a)(1)(G)(ii)
(failure to fulfill marital agreement, which, in Attorney General’s opinion, was made
to procure alien’s admission as immigrant) and ordered him removed to Kenya1. The
BIA also denied his motion for reconsideration.
Matiru contends that the agency applied the wrong standard in determining
removability. He asserts that the Department of Homeland Security (DHS) was
required to establish all facts that supported the removal charges with evidence that
was “clear, unequivocal and convincing.” He also contends he was denied his
procedural due-process right to a full and fair hearing because the IJ’s rulings
regarding recusal, witness credibility, and the admission of evidence likely arose
“from unintentional, implicit association bias.” He further claims the BIA
mischaracterized his motion to reopen as a motion for reconsideration, and
1
The IJ’s decision denying Matiru’s application for statutory waiver of
removability under 8 U.S.C. § 1227(a)(1)(H) is not before this court.
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improperly rejected his argument that Williams v. Pennsylvania, 136 S. Ct. 1899
(2016), required the IJ to recuse herself due to her prior contact with the immigration
service officer who interviewed Matiru when the IJ worked as an attorney for DHS.
This court concludes that the BIA applied the correct standard in determining
that Matiru was removable under section 1227(a)(1)(A) in requiring DHS to establish
the facts supporting the charges against Matiru by clear and convincing evidence.
See Maric v. Sessions, 854 F.3d 520, 522 (8th Cir. 2017) (applying “clear and
convincing” standard to alien who was removable under section 1227(a)(1)(A) based
on inadmissibility at time of entry and adjustment of status).
Matiru was not denied his procedural due-process right to a full and fair
hearing by the IJ’s rulings or the BIA’s treatment of his motion. Williams does not
require the IJ to recuse herself, as the record establishes that she had no previous
knowledge or involvement in Matiru’s case prior to her role as an IJ conducting his
proceedings. See United States v. Norwood, 854 F.3d 469, 471-72 (8th Cir. 2017)
(finding no merit in defendant’s suggestion that due process required district court
judge – a former U.S. Attorney who left government employ after first arrests were
made in defendant’s case but before government acquired any information about
defendant – to recuse sua sponte; citing Williams and concluding that judge did not
have conflict of interest that would require recusal, as she had no significant personal
involvement in critical decision regarding defendant’s subsequent prosecution and
defendant offered no evidence tending to show reasonable person with knowledge of
relevant circumstances might reasonably question her impartiality); cf. Williams, 136
S. Ct. at 1906-07.
The IJ’s credibility rulings were properly explained and supported, and thus
entitled to deference. See 8 U.S.C. § 1229a (c)(4)(C) (listing permissible bases for
credibility determinations); Loulou v. Ashcroft, 354 F.3d 706, 709 (8th Cir. 2004)
(this court defers to IJ’s adverse credibility findings when they are supported by
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specific, cogent reasons for IJ’s disbelief). The record refutes Matiru’s
“unintentional, implicit association bias” argument. Cf. Liteky v. United States, 510
U.S. 540, 556 (1994) (rejecting petitioner’s assertions of judge bias or partiality,
because identified manifestations of alleged judge bias in conduct of trial – including
questions posed to certain witnesses, alleged “anti-defendant tone,” cutting off a
testimony relevant to state of mind, and post-trial refusal of IFP motion – did not
display deep-seated and unequivocal antagonism that would render fair judgment
impossible).
The BIA properly treated Matiru’s motion as one for reconsideration, because
it challenged the correctness of the IJ’s failure to recuse herself in light of intervening
Supreme Court case law. The BIA correctly found that the motion was untimely
filed. See 8 U.S.C. § 1229a(c)(6)(B) (deadline for filing of motion to reconsider);
Gomez-Gutierrez v. Lynch, 811 F.3d 1053, 1059-60 (8th Cir. 2016) (motion to
reconsider contests correctness of original decision based on previous factual record;
motion to reopen seeks new hearing based on evidence that is new or was previously
unavailable).
The petition is denied. See 8th Cir. R. 47B.
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