Julius Cho v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 27 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JULIUS NDI CHO, No. 20-71615
Petitioner, Agency No. A096-411-651
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 21, 2021**
San Francisco, California
Before: WATFORD and HURWITZ, Circuit Judges, and BAKER,*** International
Trade Judge.
Julius Ndi Cho, a native and citizen of Cameroon, petitions for review of a
Board of Immigration Appeals (BIA) order denying his untimely motion to reopen
*
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 M. Miller Baker, Judge for the United States Court of
International Trade, sitting by designation.
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removal proceedings. We deny the petition for review as to that issue because Cho
has not demonstrated materially changed country conditions in Cameroon or
ineffective assistance of counsel to warrant equitable tolling. We dismiss for lack
of jurisdiction Cho’s challenge to the BIA’s denial of his request for sua sponte
reopening.
1. Because Cho filed his motion to reopen more than 90 days after the date
of the final administrative decision, his motion was untimely. Najmabadi v.
Holder, 597 F.3d 983, 986 (9th Cir. 2010). A petitioner seeking to reopen after the
90-day deadline based on changed country conditions must show that
“circumstances have changed sufficiently that a petitioner who previously did not
have a legitimate claim for asylum now has a well-founded fear of future
persecution.” Malty v. Ashcroft, 381 F.3d 942, 945 (9th Cir. 2004). The BIA
denied Cho’s motion to reopen based on changed country conditions on two
independent grounds: first, the evidence presented did not show a qualitative
change in country conditions in Cameroon; and second, Cho did not establish that
the alleged change in conditions was material to his eligibility for relief.
The BIA did not abuse its discretion in denying Cho’s motion to reopen
based on changed country conditions. We need not decide whether the BIA
properly based its decision on the first ground because the agency properly
identified this as a case in which a prior adverse credibility finding rendered
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immaterial the allegedly changed country conditions. See Toufighi v. Mukasey,
538 F.3d 988, 996–97 (9th Cir. 2008). Contrary to Cho’s assertion, the BIA did
not make its own adverse credibility finding nor improperly apply the prior
credibility finding to a new basis for relief. See Yang v. Lynch, 822 F.3d 504, 509
(9th Cir. 2016). Instead, the BIA determined that the country conditions evidence
was not material to Cho’s claimed fear of persecution based on his political
opinion because he had been found not credible as to alleged past persecution on
the same basis.
Cho asserts for the first time on appeal a new ground for asylum based on
his ethnicity as a member of the Ngemba tribe from the Anglophone region of
Bamenda, Cameroon. Because he failed to raise this ethnicity claim during
proceedings before the BIA, we lack jurisdiction to consider it. See 8 U.S.C.
§ 1252(d)(1); Barron v. Ashcroft, 358 F.3d 674, 676–78 (9th Cir. 2004).
2. The BIA did not abuse its discretion in finding that Cho failed to
demonstrate grounds for equitably tolling the 90-day filing deadline based on
ineffective assistance of counsel. To qualify for equitable tolling, Cho must show:
(1) prior counsel’s ineffectiveness prevented him from seeking timely reopening;
(2) due diligence in discovering counsel’s fraud or error; and (3) compliance with
the procedural requirements of Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988).
Singh v. Holder, 658 F.3d 879, 884 (9th Cir. 2011). In addition, Cho must show
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that his counsel’s performance was deficient and that he suffered prejudice as a
result. Id. at 885.
The BIA properly determined that Cho failed to show prejudice from the
allegedly deficient performance of his former representatives. For example, while
Cho asserts that his accredited representative was ineffective in failing to prepare a
declaration in advance of his first merits hearing, Cho has failed to explain how a
declaration would have resolved any of the inconsistencies between his testimony
and other record evidence. Moreover, some of Cho’s claims of ineffective
assistance are directly belied by record evidence. For example, although Cho
asserts that his accredited representative provided ineffective assistance by failing
to advise him that his family members could testify telephonically, the record
shows that Cho’s mother was in fact permitted to testify telephonically but chose
not to do so for personal reasons.
3. We lack jurisdiction to review Cho’s challenge to the BIA’s denial of sua
sponte reopening under 8 C.F.R. § 1003.2(a), as the denial was purely
discretionary and not based on a legally erroneous premise. Ekimian v. INS, 303
F.3d 1153, 1159 (9th Cir. 2002).
PETITION FOR REVIEW DENIED in part and DISMISSED in part.