Habtyes v. Holder

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JAN 28 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
RAHEL SHIFERAW HABTYES, No. 06-73793
Petitioner, Agency No. A078-648-361
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
RAHEL SHIFERAW HABTYES, No. 08-70612
Petitioner, Agency No. A078-648-361
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submission Deferred November 5, 2010
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Resubmitted July 1, 2013**
San Francisco, California
Before: KOZINSKI,*** Chief Judge, THOMAS, Circuit Judge, and RESTANI,
Judge.****
Petitioner Rahel Shiferaw Habtyes (“Habtyes”) challenges the Board of
Immigration Appeals’ (“BIA”) decision affirming the oral decision of an
immigration judge (“IJ”), finding Habtyes not credible and denying her requested
relief for asylum, withholding of removal, and Convention Against Torture
(“CAT”) relief. The IJ found Habtyes’s testimony to be vague, unresponsive,
“very internally inconsistent, contradicting, and most confusing.” We agree that
the record is replete with factual inconsistencies and conflicts going to the heart of
Habtyes’s claims, both within Habtyes’s testimony and also with respect to her
documentary evidence. Accordingly, the IJ’s credibility determination, adopted by
the BIA, was not clearly erroneous and was supported by substantial evidence. See
Singh-Kaur v. INS, 183 F.3d 1147, 1149–50 (9th Cir. 1999) (“The court must
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
Judge Cynthia Hall, now deceased, was a member of the original
panel. Chief Judge Kozinski was substituted in her stead.
****
The Honorable Jane A. Restani, Judge of the United States Court of
International Trade, sitting by designation.
2
uphold the BIA’s findings unless the evidence presented would compel a
reasonable finder of fact to reach a contrary result . . . .”).
Habtyes also challenges the BIA’s denial of her second motion to reopen
(“MTR”). Habtyes asserts that her second MTR should have been granted on the
grounds that her counsel was ineffective for failing to file a petition for review of
her first MTR, which the BIA denied on the merits.
Putting aside technical issues with the second MTR, failure to file a petition
for review of the first MTR may constitute ineffective assistance of counsel and is
presumptively prejudicial because it denies Habtyes access to the entire system of
appeal. See Dearinger ex rel. Volkova v. Reno, 232 F.3d 1042, 1045 (9th Cir.
2000) (The failure to file an appeal “mandates a presumption of prejudice because
‘the adversary process itself’ has been rendered ‘presumptively unreliable.’”
(quoting Roe v. Flores-Ortega, 528 U.S. 470, 483 (2000)). This presumption may
be overcome, however, where the Petitioner has not demonstrated “plausible
grounds for relief.” See id. at 1046. We review the BIA’s denial of an MTR for
abuse of discretion. See Siong v. INS, 376 F.3d 1030, 1036 (9th Cir. 2004).
We find no plausible grounds for relief, based on the claims raised in the
first MTR, as Habtyes failed to put forward evidence to support her contested
claims of deficient performance by her former counsel and prejudice. Therefore,
3
the BIA’s decision denying the first MTR would be upheld on appeal under the
deferential abuse of discretion standard. See Oyeniran v. Holder, 672 F.3d 800,
806 (9th Cir. 2012) (applying abuse of discretion standard in reviewing a motion to
reopen).
PETITIONS DENIED.
4