Neville Lyimo v. Loretta Lynch
UNPUBLISHED OPINION FILED. [16-60783 Affirmed] Judge: PEH, Judge: EHJ, Judge: JES. Mandate issue date is 01/29/2018; denying motion to appoint counsel filed by Petitioner Mr. Neville Lyimo [8406701-2]; denying motion to assign legal organization to appear as Amicus Curiae filed by Petitioner Mr. Neville Lyimo [8406701-3] [16-60783]
Date Filed: 12/06/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
December 6, 2017
Lyle W. Cayce
JEFFERSON B. SESSIONS, III, U.S. ATTORNEY GENERAL,
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A079 689 067
Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.
PER CURIAM: *
Neville Lyimo is a native and citizen of Tanzania. An immigration judge
concluded that he was removable because his prior conviction under 26 U.S.C.
§ 7206(2) was an aggravated felony, and the Board of Immigration Appeals
(BIA) affirmed. Now, he petitions this court for review of the BIA’s denial of
his motion to reconsider or reopen, arguing that the BIA erred by denying his
motion to reconsider or reopen because the modified categorical approach given
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 12/06/2017
in Descamps v. United States, 133 S. Ct. 2276 (2013), should have been used
to analyze the issue whether his § 7206(2) conviction was an aggravated felony
under 8 U.S.C. § 1101(a)(43)(M) and because counsel rendered ineffective
assistance by not advancing a Descamps argument. He also moves this court
for appointed counsel or, in the alternative, for a legal organization to appear
as amicus curiae. This motion is DENIED.
Motions to reopen or to reconsider are disfavored. Lara v. Trominski,
216 F.3d 487, 496 (5th Cir. 2000). This court reviews the denial of a motion to
reopen or a motion to reconsider under a “highly deferential abuse-of-discretion
standard.” Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir. 2005). Under this
standard, the BIA’s ruling will be upheld, even if this court concludes 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.
The Supreme Court has squarely held that a § 7206(2) offense
constitutes an aggravated felony for immigration purposes. Kawashima v.
Holder, 565 U.S. 478, 484-85 (2012). Additionally, that the offense involved a
loss exceeding $10,000 is established by clear and convincing record evidence.
See Arguelles-Olivares v. Mukasey, 526 F.3d 171, 178 (5th Cir. 2008). Finally,
neither the categorical nor the modified categorical approach applies to the
issue whether the loss exceeded $10,000. See Nijhawan v. Holder, 557 U.S. 29,
40 (1997); Arguelles-Olivares, 526 F.3d at 177-78. Lyimo has not shown that
the BIA’s denial of his motion to reopen or reconsider was “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.”
Zhao, 404 F.3d at 304. Consequently, his petition for review is DENIED.
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