FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT May 6, 2019 _________________________________ Elisabeth A. Shumaker Clerk of Court PHYLLIS MWAURA, a/k/a Phyllis Nyambua Mwaura, Petitioner, v. No. 18-9506 (Petition for Review) WILLIAM P. BARR, United States Attorney General, Respondent. _________________________________ ORDER AND JUDGMENT** _________________________________ Before HARTZ, MATHESON, and CARSON, Circuit Judges. _________________________________ Phyllis Mwaura, a native and citizen of Kenya, petitions for review of the denial of her motion to reopen her immigration proceedings. Exercising jurisdiction under 8 U.S.C. § 1252(a), see Kucana v. Holder, 558 U.S. 233, 253 (2010); Infanzon In accordance with Rule 43(c)(2) of the Federal Rules of Appellate Procedure, William P. Barr is substituted for Jefferson B. Sessions, III, as the respondent in this action. ** After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. v. Ashcroft, 386 F.3d 1359, 1361 (10th Cir. 2004), we grant the petition and remand for further proceedings. BACKGROUND Ms. Mwaura, a member of Kenya’s Kikuyu tribe, entered the United States on a nonimmigrant student visa in January 1997. Although she graduated from college, she did not leave. Ten years after her entry she was served with a Notice to Appear. She applied for cancellation of removal based on hardship to her three United States citizen children (two daughters and a son), but the immigration judge (IJ) denied the application. Cancellation of removal requires demonstrating good moral character for the preceding ten years, 8 U.S.C. § 1229b(b)(1)(A), (B), and the IJ found that she could not meet that requirement because in 2005 she had entered into a fraudulent marriage with a United States citizen to seek adjustment of status. In August 2012 the Board of Immigration Appeals (BIA) dismissed her appeal, agreeing with the IJ’s determination that she was statutorily ineligible for cancellation of removal because committing marriage fraud precluded her from establishing good moral character. Five years later, in August 2017, Ms. Mwaura filed a motion to reopen her immigration proceedings to allow her to apply for asylum, withholding of removal, and relief under the Convention Against Torture. She explained that soon after the BIA dismissed her appeal in 2012, she learned for the first time that several family members in Kenya had been subjected to female genital mutilation (FGM). Her family expressed concern for her and her daughters’ safety in Kenya. 2 Accordingly, within weeks of the BIA’s August 2012 decision, Ms. Mwaura retained attorney James Sarpong to file an application for asylum or withholding of removal, prepaying his $7,000 fee. ...
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