Delwar Hossain v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 10 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DELWAR HOSSAIN; BELAYET No. 16-70474
HOSSAIN, 17-70263
17-71618
Petitioners,
Agency Nos. A089-715-668
v. A093-460-127
WILLIAM P. BARR, Attorney General,
MEMORANDUM*
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 6, 2020**
Pasadena, California
Before: THOMAS, Chief Judge, and WARDLAW and NGUYEN, Circuit Judges.
Petitioners Delwar and Belayet Hossain, brothers of Bangladeshi origin,
petition for review of a decision by the Board of Immigration Appeals (“BIA”)
affirming the denial by an immigration judge (“IJ”) of their applications for
asylum, withholding of removal, and protection under the Convention Against
*
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).
Torture (“CAT”). They also seek review of the BIA’s denial of their subsequent
motion to reopen, as well as the BIA’s denial of their motion to reconsider. We
have jurisdiction under 8 U.S.C. § 1252, and we deny the petitions for review.
1. Petitioners do not challenge the merits of the IJ’s adverse credibility or
frivolity findings. The IJ and the BIA did not err in concluding that, absent
credible testimony, petitioners failed to demonstrate entitlement to asylum,
withholding of removal, or CAT protection.
2. The BIA did not err in finding that petitioners failed to present a viable
claim for ineffective assistance of counsel and, in turn, declining to remand to the
IJ. Petitioners argue their counsel failed to prepare adequate written submissions
to accompany their applications for immigration relief, or to prepare them
sufficiently for their oral testimony. But even assuming counsel was deficient in
both respects, petitioners did not show a sufficient nexus with the IJ’s adverse
credibility rulings to demonstrate prejudice. See Mohammed v. Gonzales, 400 F.3d
785, 793–94 (9th Cir. 2005). First, the BIA rightly determined that the unfavorable
determinations by the IJ bore little connection to the thoroughness of petitioners’
written submissions. Second, the BIA did not err in finding that the petitioners, not
their counsel, bore responsibility for the substantial discrepancies in their
testimony and their failure, at times, to be forthright. And the petitioners’ lack of
credibility arose not only from their inconsistent testimony, but also from Belayet’s
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admitted alteration of documents submitted to the IJ and Delwar’s dubious
response when confronted on the matter. It is clear from the record that the IJ did
not consider his credibility determination to be a close call; indeed, the IJ found
petitioners’ testimony so incredible that he made a frivolity finding as to Belayet—
sparing Delwar only because of his lesser education and more limited testimony.
3. The BIA did not abuse its discretion in denying petitioners’ motion to
reopen. See Ghahremani v. Gonzales, 498 F.3d 993, 997 (9th Cir. 2007). The
motion was not timely filed, and the BIA did not err in determining that equitable
tolling was unwarranted. See id. at 999; 8 U.S.C. § 1229a(c)(7)(C)(i). Petitioners
did not provide a sufficient basis for their contention that a nondescript “attempted
mutiny” by a “[M]uslim attorney” hindered them from meeting the filing deadline.
Nor, even if they had made such a showing, did petitioners demonstrate due
diligence in discovering the misconduct or acting promptly in response to such
discovery. See Singh v. Holder, 658 F.3d 879, 884 (9th Cir. 2011). Petitioners’
counsel referenced the conflict with the Muslim attorney as early as a declaration
dated April 2, 2015, but the deadline to file the motion to reopen did not pass until
more than a year later on April 20, 2016. And petitioners did not file their motion
for another six months thereafter—which itself was three months after petitioners
claim they resolved their representation issues. Petitioners offer no substantive
explanation for the duration of the delay.
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The BIA also rightly determined that any ineffective assistance by
petitioners’ previous counsel, Mr. Abdallah, provided no justification for their
failure to meet the deadline for filing the motion to reopen, long after they had
retained new counsel.1
Petitioners also contest the BIA’s decision not to exercise its discretionary
authority to reopen the proceedings sua sponte. However, we lack jurisdiction to
review such claims, where, as here, the BIA’s decision rested on its application of
the “‘exceptional situation’ benchmark.” Bonilla v. Lynch, 840 F.3d 575, 586 (9th
Cir. 2016).
4. The BIA did not abuse its discretion in denying petitioners’ motion to
reconsider the decision on the motion to reopen. See Barroso v. Gonzales, 429
F.3d 1195, 1200 (9th Cir. 2005). A motion to reconsider must identify “errors of
law or fact in the previous order,” and “contest[] the correctness of the original
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The BIA appropriately rejected the motion to reopen on timeliness grounds alone.
However, we note that the BIA also did not err in its alternative determinations that
petitioners proffered no assertions or evidence in support of their ineffective
assistance claim that had not been considered already on appeal, and that
petitioners’ newly-presented claim of judicial bias was “unsubstantiated,” such that
their motion to reopen would fail even if considered on the merits. As to judicial
bias, petitioners did not meet their burden to show “that the IJ had a deep-seated
favoritism or antagonism that would make fair judgment impossible.” Vargas-
Hernandez v. Gonzales, 497 F.3d 919, 926 (9th Cir. 2007). Petitioners cite as
evidence of judicial bias several statements by the IJ in which he voices his
disbelief of petitioners’ testimony. But, in so doing, petitioners conflate
appropriate adverse credibility findings with inappropriate judicial partiality.
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decision based on the previous factual record.” 8 U.S.C. § 1229a(c)(6)(C); Matter
of O-S-G-, 24 I. & N. Dec. 56, 57 (BIA 2006). But petitioners did not identify any
material error in the prior order. As discussed above, the BIA acted well within its
discretion in denying the motion to reopen—whether on the basis of timeliness or
its more substantive shortcomings.
Petitioners also presented new evidentiary support for their contention
regarding the so-called attorney “mutiny,” but the BIA appropriately found that
such supplementation of the factual record was inappropriate on a motion to
reconsider. See Matter of O-S-G-, 24 I. & N. Dec. at 57. Lastly, the BIA did not
err in its alternative finding that, even if the new submissions were considered, the
motion would fail nonetheless for lack of any “new or previously unavailable
evidence which would materially affect the outcome of the proceedings.”
PETITIONS DENIED.
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