Opinion
19-70697
11-18-2022
PATRICK BAKKENES, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
NOT FOR PUBLICATION
Submitted November 16, 2022 [**] San Francisco, California
On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A086-942-272
Before: RAWLINSON and HURWITZ, Circuit Judges, and CARDONE, [***] District Judge.
MEMORANDUM [*]
Patrick Bakkenes petitions for review of a decision of the Board of Immigration Appeals ("BIA") denying his motion to reopen asserting ineffective assistance of counsel. This Court has jurisdiction pursuant to 8 U.S.C. § 1252(a)(1), (5). Ortiz-Alfaro v. Holder, 694 F.3d 955, 957-60 (9th Cir. 2012). We review the denial of a motion to reopen for abuse of discretion. Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir. 2005). We review factual findings for substantial evidence and must accept them unless "any reasonable adjudicator would be compelled to conclude to the contrary based on the evidence in the record," Ai Jun Zhi v. Holder, 751 F.3d 1088, 1091 (9th Cir. 2014) (cleaned up), but review ineffective assistance of counsel claims de novo, Mohammed, 400 F.3d at 791-92.
1. Any evidence that the BIA failed to consider when it reviewed Bakkenes's motion to reopen was not "highly probative or potentially dispositive." Vitug v. Holder, 723 F.3d 1056, 1064 (9th Cir. 2013) (cleaned up). Bakkenes's declaration, as relevant to the ineffective assistance of counsel claim, simply restated his testimony before the IJ about an incident in a police station, and the BIA had previously considered that testimony and affirmed the IJ's conclusion that it did not show that Bakkenes's alleged attacker was a police officer. The declaration of Bakkenes's sister was cumulative of her prior declaration; as material, it only described additional threats and does not undermine the IJ's holding that Bakkenes had failed to show nexus between any feared persecution and a protected ground. The articles Bakkenes offered to show changed country conditions largely describe ongoing police investigations into gang-related murders and the prosecution of corrupt police officers. This information does not affect the nexus finding and, if anything, tends to support the IJ's finding that the Dutch government would not acquiesce in any persecution or torture. Bakkenes has not even alleged what evidence he gave to his former attorney that was not eventually presented to the BIA nor explained how that evidence would affect the outcome of his case.
The BIA erroneously stated that the courtesy copy of the BIA's dismissal of Bakkenes's first appeal was not returned as undelivered. But Bakkenes has failed to show prejudice from any non-delivery; his petition for review from that decision was timely filed. Bakkenes v. Sessions, No. 16-70344 (9th Cir. Feb. 4, 2016), ECF 1.
2. Bakkenes has not shown prejudice from any ineffective assistance of counsel. In its original decision, the BIA expressly considered his arguments about the police station incident and agreed with the IJ that Bakkenes did not meet his burden of demonstrating that his alleged assailant was a police officer. When it denied his motion to reopen, it also used the correct standard for "prejudice," holding that he had not shown how unpresented evidence "may have affected the outcome of his proceedings," see Maravilla Maravilla v. Ashcroft, 381 F.3d 855, 858 (9th Cir. 2004), or that he had a "plausible ground for relief," see Morales Apolinar v. Mukasey, 514 F.3d 893, 898 (9th Cir. 2008).
Nor did the IJ improperly conflate the standards governing withholding under the Immigration and Nationality Act ("INA") and the Convention Against Torture ("CAT"). The IJ properly rejected Bakkenes's INA claim because he had not established a nexus to a protected ground and had "not established a clear probability that the government would harm him or that they would not protect him." The IJ rejected Bakkenes's CAT claim "for the same reasons." If Bakkenes had not established a probability of harm by a government actor or that the government would not protect him from harm from a private individual, he had necessarily also not established a probability of torture under the CAT. 8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)(1).
3. Even if the presumption of prejudice from the failure to file a brief and the subsequent dismissal of a petition for that reason extends beyond the context of habeas corpus review, see Dearinger ex rel. Volkova v. Reno, 232 F.3d 1042, 104446 (9th Cir. 2000), the petition in this case was not denied because of that failure. Here, the Ninth Circuit panel denied the petition on the merits in response to the government's motion for summary adjudication. Bakkenes v. Sessions, No. 1670344 (9th Cir. Jan. 11, 2017), ECF 15. Bakkenes has not shown that the decision may have been different had a brief been filed.
PETITION DENIED.
[*] 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 Kathleen Cardone, United States District Judge for the Western District of Texas, sitting by designation.