Bereket Belay v. Jefferson Sessions, III

FILED
NOT FOR PUBLICATION
SEP 10 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BEREKET AFENA BELAY, Nos. 13-73253
13-74341
Petitioner,
Agency No. A200-568-251
v.
JEFFERSON B. SESSIONS III, Attorney MEMORANDUM*
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 6, 2018**
Before: THOMAS, Chief Judge, and HAWKINS and McKEOWN, Circuit Judges.
Bereket Afena Belay, a native and citizen of Eritrea, petitions for review of
the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s (“IJ”) decision denying his application for asylum,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes these cases are suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
withholding of removal, and relief under the Convention Against Torture (“CAT”)
(No. 13-73253), and of the BIA’s order denying his motion to reconsider and
reopen (No. 13-74341). Our jurisdiction is governed by 8 U.S.C. §1252. We
review for substantial evidence the agency’s factual findings, applying the
standards governing adverse credibility determinations created by the REAL ID
Act. See Shrestha v. Holder, 590 F.3d 1034, 1039-40 (9th Cir. 2010). We review
de novo questions of law, and we review for abuse of discretion the BIA’s denial
of motions to reconsider and reopen. See Mohammed v. Gonzales, 400 F.3d 785,
791-92 (9th Cir. 2005). We deny in part and dismiss in part petition No. 13-73253.
We deny petition No. 13-74341.
As to petition No. 13-73253, substantial evidence supports the agency’s
adverse credibility determination based on Belay’s vague and confusing testimony
as to his escape from military school, a material and significant event. See
Shrestha v. Holder, 590 F.3d at 1048. Belay’s explanations do not compel the
opposite result. See Lata v. INS, 204 F.3d 1241, 1245 (9th Cir. 2000). In the
absence of credible testimony, Belay’s asylum and withholding of removal claims
fail. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003).
The BIA properly found that Belay abandoned his CAT claim because Belay
failed to meaningfully challenge the IJ’s denial of CAT. See Segura v. Holder, 605
F.3d 1063, 1066 (9th Cir. 2010). Thus, we lack jurisdiction to consider the
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contentions he makes now as to the merits of his claim. See id.As to petition No. 13-74341, the BIA did not abuse its discretion in denying
Belay’s motion to reconsider because the motion failed to identify any error of fact
or law in the BIA’s prior order. See 8 C.F.R. § 1003.2(b)(1); see also Mohammed,
400 F.3d at 791 (the BIA abuses its discretion if it acts “arbitrarily, irrationally, or
contrary to the law”).
Finally, the BIA did not abuse its discretion in denying Belay’s motion to
reopen based on ineffective assistance of counsel because Belay failed to comply
with the procedural requirements of Matter of Lozada 19 I&N Dec. 637 (BIA
1988), and also failed to demonstrate prejudice from his counsel’s alleged
ineffectiveness. See Iturribarria v. INS, 321 F.3d 889, 899-90 (9th Cir. 2003).
PETITION FOR REVIEW No. 13-73253 DENIED in part; DISMISSED
in part.
PETITION FOR REVIEW No. 13-74341 DENIED.
3 13-73253/13-74341