United States v. Kenneth Friend

United States Court of Appeals
For the Eighth Circuit
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No. 20-2726
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Tobias Zuniga-Padron
lllllllllllllllllllllPetitioner
v.
Merrick B. Garland, Attorney General of the United States1
lllllllllllllllllllllRespondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: March 11, 2021
Filed: March 18, 2021
[Unpublished]
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Before KELLY, ERICKSON, and STRAS, Circuit Judges.
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PER CURIAM.
1Attorney General Garland is substituted for his predecessor pursuant to
Federal Rule of Appellate Procedure 43(c).

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Tobias Zuniga-Padron, a native and citizen of Mexico, petitions for review of
an order of the Board of Immigration Appeals (BIA), which upheld an immigration
judge’s decision denying his motion to reopen based on the alleged ineffective
assistance of counsel.
We review the denial of a motion to reopen for abuse of the agency’s broad
discretion, recognizing that motions to reopen are viewed with disfavor. See Kucana
v. Holder, 558 U.S. 233, 242 (2010); INS v. Abudu, 485 U.S. 94, 107 (1988);
Caballero-Martinez v. Barr, 920 F.3d 543, 549 (8th Cir. 2019). After careful review,
we conclude that, even assuming counsel’s performance was deficient, the BIA acted
within its discretion when it determined Zuniga-Padron did not demonstrate the
requisite prejudice because he failed to identify any particular evidence or set forth
the legal or factual basis for a new or supplemental claim. See 8 U.S.C. §
1229a(c)(7)(B); 8 C.F.R. § 1003.23(b)(3); Ortiz-Puentes v. Holder, 662 F.3d 481, 485
(8th Cir. 2011) (concluding that the BIA did not abuse its discretion in finding
petitioners failed to show the requisite prejudice when they did not show what
additional evidence witness would have offered or otherwise proffer evidence to
support claim); Obleshchenko v. Ashcroft, 392 F.3d 970, 972-73 (8th Cir. 2004)
(concluding that petitioners failed to demonstrate prejudice when they argued
competent counsel would have submitted corroborating evidence but then failed to
file relevant corroborating documents).
Accordingly, we deny the petition for review.
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