Mungai v. Immigration & Naturalization Service

[NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 02-1219
PETER MUNGAI,
Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE;
JOHN ASHCROFT; JAMES ZIGLER,
Respondents.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Selya, Lynch and Howard,
Circuit Judges.
Michael D. Greenberg and Law Offices of Michael D. Greenberg
on brief for petitioner.
Robert D. McCallum, Jr., Assistant Attorney General, Norah
Ascoli Schwarz, Senior Litigation Counsel, Office of Immigration
Litigation, Civil Division, U.S. Department of Justice, on brief
for respondents.
August 19, 2002
Per Curiam. Peter Mungai, a citizen and native of
Kenya, petitions for review of a final order of the Board of
Immigration Appeals ("BIA") denying his motion to reopen
removal proceedings. The BIA determined that the motion, which
asserted a claim of ineffective assistance of counsel, was both
procedurally and substantively deficient.
Leaving aside the procedural matters, we must concur
with the BIA's conclusion that petitioner failed to demonstrate
prejudice as is required to prevail on a claim of ineffective
assistance of counsel. Hernandez v. Reno, 238 F.3d 50, 55 (1st
Cir. 2001); Bernal-Vallejo v. INS, 195 F.3d 56, 63 (1st Cir.
1999); In re Lozada, 19 I & N Dec. 637, 638 (BIA 1988), aff'd,
857 F.2d 10 (1st Cir. 1988). Although petitioner argued in the
motion to reopen that he was prejudiced by his attorney's
failure (1) to call petitioner's brother as a witness to
testify in support of his asylum claim in the proceedings
before the Immigration Judge, and (2) to file an appellate
brief on petitioner's behalf, he offered neither an affidavit
from his brother nor a description of the testimony his brother
would have given. Moreover, he has failed to articulate any
issues or arguments that should have been presented in an
appellate brief. We therefore accept the BIA's conclusion that
petitioner failed to show the prejudice required to demonstrate
ineffective assistance of counsel and therefore failed to
establish any grounds for reopening the removal proceedings.
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No other substantial issue being apparent, the final
order of the BIA is affirmed. See Loc. R. 27(c).
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