Everline Nyabwari v. Jefferson Sessions, III

Case: 16-60101 Document: 00514073997 Page: 1 Date Filed: 07/14/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 16-60101
Fifth Circuit
FILED
Summary Calendar July 14, 2017
Lyle W. Cayce
EVERLINE GESARE NYABWARI, Clerk
Petitioner
v.
JEFFERSON B. SESSIONS, III, U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A097 683 208
Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Everline Gesare Nyabwari petitions for review of the Board of
Immigration Appeals’ (“BIA”) decision denying her time-barred and numbers-
barred motion to reopen based on alleged ineffective assistance of counsel.
Nyabwari contended that prior counsel was ineffective for failing to challenge
the admissibility of I-9 forms in her removal proceedings. The BIA denied
Nyabwari’s motion to reopen based on its decision in Matter of Bett, 26 I&N
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 16-60101 Document: 00514073997 Page: 2 Date Filed: 07/14/2017
No. 16-60101
Dec. 437 (BIA 2014), in which the BIA held that I-9 forms are admissible in
immigration proceedings to determine an alien’s eligibility for relief from
removal.
Motions to reopen are disfavored. Lara v. Trominski, 216 F.3d 487, 496
(5th Cir. 2000). We review the denial of a motion to reopen under a “highly
deferential abuse-of-discretion standard.” Zhao v. Gonzales, 404 F.3d 295, 303
(5th Cir. 2005). The ruling will stand even if this court concludes 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.” Id. at 304.
Under this court’s “highly deferential abuse-of-discretion standard,”
Nyabwari has not shown that the BIA abused its discretion in denying her
motion to reopen based on ineffective assistance of counsel. See id. at 303–04.
The decision in Matter of Bett, 26 I. & N. Dec. at 440–43, undermines any
argument that Nyabwari was substantially prejudiced by counsel’s failure to
challenge the admissibility of the I-9 forms on appeal, and it indicates that
counsel was not deficient for pursuing a futile line of argument. We discern no
abuse of discretion given the BIA’s established position that I-9 forms are
admissible in removal proceedings to determine eligibility for relief from
removal.
Nyabwari’s petition for review is DENIED.
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