Charles Kiama Migwi v. JEFFERSON B. SESSIONS III, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHARLES KIAMA MIGWI,
Petitioner,
v.
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
No. 15-72718
Agency No. A088-544-277
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 29, 2018**
Seattle, Washington
Before: HAWKINS, McKEOWN, and W. FLETCHER, Circuit Judges.
Charles Kiama Migwi, a native and citizen of Kenya, seeks review of the
Board of Immigration Appeals’ (“BIA”) denial of his motion to reopen deportation
proceedings. We have jurisdiction under 8 U.S.C. § 1252(a)(1). Reviewing for
* 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).
FILED
AUG 31 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 3 --

2
abuse of discretion, Singh v. INS, 213 F.3d 1050, 1052 (9th Cir. 2000), we deny the
petition for review.
The BIA did not abuse its discretion in concluding Migwi’s motion was not
eligible for equitable tolling because Migwi failed to establish that he acted with due
diligence to definitively learn of his former attorney’s ineffectiveness. See Singh v.
Gonzales, 491 F.3d 1090, 1096–97 (9th Cir. 2007) (waiting six months after
developing initial suspicions of attorney’s fraud before consulting new counsel).
Moreover, even if Migwi had acted with due diligence, he did not comply with the
Lozada requirements; rather, Migwi did not describe the nature and scope of his
attorney representation agreement and did not file—or suitably explain why he did
not file—a bar complaint against his former attorney. See Matter of Lozada, 19 I. &
N. Dec. 637, 639 (BIA 1988); see also Castillo-Perez v. INS, 212 F.3d 518, 525 (9th
Cir. 2000) (Lozada requirements are generally reasonable, and under ordinary
circumstances the BIA does not abuse its discretion when it denies reopening where
the petitioner fails to meet them.).
The BIA also did not abuse its discretion in concluding that Migwi did not
proffer material and previously unavailable evidence supporting changed
circumstances in Kenya. See 8 C.F.R. § 1003.2(c)(3)(ii). Specifically, the doctor’s
declaration, family affidavits, and country reports were either not relevant or too
vague to be material to Migwi’s prima facie case for relief. See, e.g., Wakkary v.

-- 2 of 3 --

3
Holder, 558 F.3d 1049, 1065 (9th Cir. 2009) (petitioners must show an
individualized risk of future persecution or a pattern or practice of persecution
against similarly situated persons).
PETITION DENIED.

-- 3 of 3 --