Everline Nyabwari v. Loretta Lynch
UNPUBLISHED OPINION FILED. [16-60101 Affirmed ] Judge: WED , Judge: LHS , Judge: SAH Mandate pull date is 09/05/2017 [16-60101]
Date Filed: 07/14/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
July 14, 2017
Lyle W. Cayce
EVERLINE GESARE NYABWARI,
JEFFERSON B. SESSIONS, III, U.S. ATTORNEY GENERAL,
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A097 683 208
Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Everline Gesare Nyabwari petitions for review of the Board of
Immigration Appeals’ (“BIA”) decision denying her time-barred and numbersbarred motion to reopen based on alleged ineffective assistance of counsel.
Nyabwari contended that prior counsel was ineffective for failing to challenge
the admissibility of I-9 forms in her removal proceedings. The BIA denied
Nyabwari’s motion to reopen based on its decision in Matter of Bett, 26 I&N
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Date Filed: 07/14/2017
Dec. 437 (BIA 2014), in which the BIA held that I-9 forms are admissible in
immigration proceedings to determine an alien’s eligibility for relief from
Motions to reopen are disfavored. Lara v. Trominski, 216 F.3d 487, 496
(5th Cir. 2000). We review the denial of a motion to reopen under a “highly
deferential abuse-of-discretion standard.” Zhao v. Gonzales, 404 F.3d 295, 303
(5th Cir. 2005). The ruling will stand even if this court concludes that it is
erroneous, “so long as it is not capricious, racially invidious, utterly without
foundation in the evidence, or otherwise so irrational that it is arbitrary rather
than the result of any perceptible rational approach.” Id. at 304.
Under this court’s “highly deferential abuse-of-discretion standard,”
Nyabwari has not shown that the BIA abused its discretion in denying her
motion to reopen based on ineffective assistance of counsel. See id. at 303–04.
The decision in Matter of Bett, 26 I. & N. Dec. at 440–43, undermines any
argument that Nyabwari was substantially prejudiced by counsel’s failure to
challenge the admissibility of the I-9 forms on appeal, and it indicates that
counsel was not deficient for pursuing a futile line of argument. We discern no
abuse of discretion given the BIA’s established position that I-9 forms are
admissible in removal proceedings to determine eligibility for relief from
Nyabwari’s petition for review is DENIED.
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