United States Court of Appeals For the Eighth Circuit ___________________________ No. 18-1970 ___________________________ Ibrahim Kariuki Mwangi lllllllllllllllllllllPetitioner v. William P. Barr, Attorney General of the United States lllllllllllllllllllllRespondent ____________ Petition for Review of an Order of the Board of Immigration Appeals ____________ Submitted: April 18, 2019 Filed: August 19, 2019 ____________ Before LOKEN, WOLLMAN, and STRAS, Circuit Judges. ____________ LOKEN, Circuit Judge. Ibrahim Mwangi, a citizen of Kenya, was admitted to the United States in 1998 and overstayed his student visa. After his fourth arrest for driving under the influence, the Department of Homeland Security (DHS) commenced removal proceedings. Mwangi applied for asylum, withholding of removal, and relief under the Convention Against Torture (CAT), alleging fear he would be killed if he returned to Kenya “because of owning land” and because he belonged to the Kikuyu tribe. After a hearing, the immigration judge (IJ) ordered Mwangi removed to Kenya; the Board of Immigration Appeals (BIA) affirmed the IJ’s decision on July 22, 2016. With new counsel, Mwangi filed a motion to reopen on December 22, 2017, alleging ineffective assistance of his former counsel. A motion to reopen must be filed “within 90 days of the date of entry of a final administrative order of removal.” 8 U.S.C. § 1229a(c)(7)(C)(i); see 8 C.F.R. § 1003.2(c)(2). Mwangi now petitions for review of the BIA’s denial of his untimely motion to reopen. Reviewing that decision for abuse of discretion, we deny the petition for review. See Valencia v. Holder, 657 F.3d 745, 748 (8th Cir. 2011) (standard of review). At the removal hearing, Mwangi testified that he and his parents, brothers, and sisters inherited five acres of land from his grandfather in 1993. Mwangi’s uncles (his mother’s brothers) then hired the Mungikis, “a very violent, extremely violent gang,” to attack Mwangi’s family to force them off their land. In support, Mwangi’s former counsel submitted an affidavit purportedly written by a Kenyan art professor and several letters purportedly written by a local chief in Kenya. The IJ denied Mwangi’s application for asylum because it was filed more than one year after his last arrival in the United States. The IJ denied withholding of removal because he found Mwangi’s testimony not credible, and because Mwangi had not shown an objectively reasonable fear of future persecution on account of his membership in a particular social group if he was removed to Kenya. See 8 U.S.C. § 1231(b)(3). Mwangi filed motions to reopen and for reconsideration which the IJ denied. The BIA affirmed the IJ’s decision on the merits without reaching the question of Mwangi’s credibility. The BIA then denied Mwangi’s untimely motion to reopen for two reasons: first, Mwangi had not “demonstrated due diligence” in filing the motion seventeen months after the BIA’s merits decision; second, Mwangi had not shown prejudice -- that more effective assistance of counsel “would have changed the outcome of this proceeding.” -2- In his petition for review, Mwangi argues the BIA erred in (1) failing to treat his motion to reopen ...
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