SUTTON v. BARR (2019)

MEMORANDUM **

In these consolidated petitions for review, Christianh Olubunmi Sutton, a native and citizen of the United Kingdom, petitions for review of the Board of Immigration Appeals’ (“BIA”) orders dismissing her appeal from an immigration judge’s order denying her application under 8 U.S.C. § 1186a(c)(4)(B) for waiver of the joint filing requirement to remove the conditional basis of her lawful permanent resident status, and denying her motion to reopen.¹ We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, and we review de novo questions of law and constitutional claims. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We deny the petition for review.

The BIA properly rejected Sutton’s ineffective assistance of counsel claim, where she failed to show prejudice resulting from her prior counsel’s alleged ineffective assistance. See Martinez-Hernandez v. Holder, 778 F.3d 1086, 1088 (9th Cir. 2015) (“A claim of ineffective assistance of counsel requires a showing of inadequate performance and prejudice.”).

The BIA did not abuse its discretion in denying Sutton’s motion to reopen, where she failed to show prima facie eligibility for an extreme hardship waiver under 8 U.S.C. § 1186a(c)(4)(A). See 8 C.F.R. § 1216.5(e)(1) (“[A]ny removal from the United States is likely to result in a certain degree of hardship, and ․ only in those cases where the hardship is extreme should the application for a waiver be granted.”); Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010) (the BIA may deny a motion to reopen for failure to establish a prima facie case for the relief sought). The record does not support Sutton’s contention that the BIA failed to consider relevant evidence. See Najmabadi, 597 F.3d at 990.

PETITION FOR REVIEW DENIED.

FOOTNOTES

1.   These BIA orders were subsequent to this court’s remand in Sutton v. Lynch, 656 Fed.Appx. 343 (9th Cir. 2016).