NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 6 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT PADDY OSEWE OKOTH, No. 20-70599 Petitioner, Agency Nos. A201-004-925 v. MERRICK B. GARLAND, Attorney MEMORANDUM* General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted February 14, 2022** San Francisco, California Before: SILER,*** S.R. THOMAS, and CALLAHAN, Circuit Judges. Paddy Osewe Okoth (“Okoth”) petitions for review of the Board of Immigration Appeals’ (“BIA”) denial of his motion to reopen. Okoth also raises for * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Eugene E. Siler, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. 1 the first time an ineffective assistance of counsel (“IAC”) claim. We have jurisdiction under 8 U.S.C. § 1252. A denial of a motion to reopen is reviewed for abuse of discretion. INS v. Doherty, 502 U.S. 314, 323 (1992). A motion to reopen shall not be granted unless it is supported by evidence that is material, was unavailable at the last hearing, and is relevant and specific to the moving party’s underlying claims. See Dada v. Mukasey, 554 U.S. 1, 14 (2008). The new evidence must show the moving party is prima facie eligible for the underlying relief sought. Ramirez-Munoz v. Lynch, 816 F.3d 1226, 1228 (9th Cir. 2016). We deny the petition in full because (1) Okoth has not shown that the BIA abused its discretion in determining that he failed to establish prima facie eligibility for the relief sought, and (2) Okoth failed to exhaust his IAC claim. 1. Okoth claims he is entitled to asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). To establish prima facie eligibility for asylum and withholding of removal Okoth must demonstrate “credible, direct, and specific evidence . . . that would support a reasonable fear of persecution” if he is returned to Kenya. Nagoulko v. INS, 333 F.3d 1012, 1016 (9th Cir. 2003). When a petitioner, like Okoth, has not suffered persecution in the past he must demonstrate an individualized, versus 2 generalized, risk of future persecution. Bhasin v. Gonzales, 423 F.3d 977, 984 (9th Cir. 2005). To carry this burden, Okoth largely relies on an affidavit from his father regarding his father’s eligibility for CAT relief from 2000 and a 2019 Human Rights Report discussing political turmoil in Kenya, but he did not relate these items to his own risk of future persecution. Okoth also included transcripts of unauthenticated text messages from his family discussing violence in Kenya, but he did not provide a way to authenticate the origin or validity of those messages, nor did he adequately tie these messages to his claims for relief. The BIA rightly deemed …
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals