Kavita Komal v. Eric Holder, Jr. , 585 F. App'x 609 ( 2014 )

FILED
NOT FOR PUBLICATION OCT 30 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KAVITA KOMAL; et al., No. 11-70980
Petitioners, Agency Nos. A070-059-038
A070-059-039
v. A070-059-040
A071-787-248
ERIC H. HOLDER, Jr., Attorney General,
Respondent. MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 8, 2014**
Pasadena, California
Before: PREGERSON, TALLMAN, and BEA, Circuit Judges.
In the 1990s, petitioners Kavita Komal (“Komal”) and her husband (both ethnic
Indian, Fijian citizens) claimed race-based persecution by native Fijians and filed for
asylum. Since then, petitioners have steadfastly sought administrative and judicial
review over their denied applications for asylum. Their first Immigration Judge (“IJ”)
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
denied asylum, in part because the IJ made an adverse credibility determination from
inconsistencies in petitioners’ testimony surrounding the alleged rape of Komal by
native Fijians and the injuries suffered by Komal’s husband at the hands of those
rapists. The BIA affirmed, and this court denied the petition for review. The BIA
then granted petitioners’ unopposed motion to reopen;1 a second IJ denied asylum; the
BIA affirmed; and this court denied a second petition for review.
On July 22, 2010, nearly three and a half years after the BIA’s December 27,
2007 denial of petitioners’ second appeal, Komal and her husband filed their second
motion to reopen, arguing that recent discovery of ineffective assistance of counsel
by two attorneys should equitably toll the time limit for what would ordinarily be an
untimely motion. Petitioners also argued that changed circumstances in Fiji warranted
the reopening of their case. The BIA denied the motion as untimely and held that
petitioners could not demonstrate individualized risk of persecution based on changed
circumstances. Now Komal and her husband seek review of the BIA’s denial of their
second motion to reopen. We review the BIA’s decision for abuse of discretion.
Toufighi v. Mukasey, 538 F.3d 988, 992 (9th Cir. 2007) (citations omitted).
1
C.F.R. § 1003.2(c)(2) states a party “may file only one motion to reopen
deportation or exclusion proceedings (whether before the Board or the Immigration
Judge) and that motion must be filed no later than 90 days after the date on which
the final administrative decision was rendered in the proceeding sought to be
reopened.”
-2-
The BIA did not abuse its discretion when it held that the second motion to
reopen was untimely. Petitioners could have timely pursued their ineffective
assistance of counsel claims with the attorneys who represented them subsequent to
the allegedly ineffective counsel (and whom petitioners do not claim provided
ineffective assistance of counsel). See Avagyan v. Holder, 646 F.3d 672, 680–81 (9th
Cir. 2011). Even if the motion was timely, petitioners’ claim lacks merit. Petitioners
now admit that Komal was never raped, and claim that it was (in part) ineffective
assistance of counsel by one of their attorneys to proffer that false testimony before
the first IJ and the earlier appeals before the BIA and the Ninth Circuit. Due to
petitioners’ lack of credibility, they failed to show prejudice. Torres-Chavez v.
Holder, 567 F.3d 1096, 1100 (9th Cir. 2009).
The BIA also did not abuse its discretion when it held that petitioners’ proffered
evidence in support of the second motion to reopen did not establish individualized
risk of persecution. Our review of the administrative record shows that the BIA did
not act “arbitrarily, irrationally, or contrary to law.” Toufighi, 538 F.3d at 992
(citation omitted).
The petition for review is DENIED.
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