Samuel Muthondu Munanu v. JEFFERSON B. SESSIONS III, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SAMUEL MUTHONDU MUNANU,
Petitioner,
v.
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
No. 17-70556
Agency No. A089-315-969
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 22, 2018**
Before: SILVERMAN, GRABER, and GOULD, Circuit Judges.
Samuel Muthondu Munanu, a native and citizen of Kenya, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to
reopen removal proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. We
review for abuse of discretion the denial of a motion to reopen, and review de novo
questions of law, including claims of due process violations due to ineffective
* 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
OCT 29 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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assistance of counsel. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.
2005). We deny in part and dismiss in part the petition for review.
The BIA did not abuse its discretion in denying Munanu’s motion to reopen
based on ineffective assistance of counsel, where he did not establish prejudice
resulting from his prior counsel’s performance with respect to either asylum and
related relief or adjustment of status. See id. at 793 (a petitioner must demonstrate
that counsel’s performance may have affected the outcome of the proceedings).
We reject Munanu’s contentions that the BIA applied an incorrect legal standard or
failed to consider evidence. See Mendez-Castro v. Mukasey, 552 F.3d 975, 980
(9th Cir. 2009) (the agency applies the correct legal standard where it expressly
cites and applies relevant case law in rendering its decision); Fernandez v.
Gonzales, 439 F.3d 592, 603 (9th Cir. 2006) (petitioner did not overcome the
presumption that the BIA did review the record).
We reject Munanu’s contention that the BIA’s discretionary sua sponte
determination was premised on legal or constitutional errors, and we otherwise
lack jurisdiction to review the BIA’s decision not to reopen proceedings sua
sponte. See Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016) (the court’s
jurisdiction to review BIA decisions denying sua sponte reopening is limited to
reviewing the reasoning behind the decisions for legal or constitutional error).

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Munanu has identified no basis for revisiting this precedent at this time. See Miller
v. Gammie, 335 F.3d 889, 892-93 (9th Cir. 2003) (holding that a three judge panel
“may reexamine normally controlling circuit precedent” only “where the reasoning
or theory of our prior circuit authority is clearly irreconcilable with the reasoning
or theory of intervening higher authority”).
Because the prejudice determination is dispositive, the BIA was not required
to address Munanu’s contentions regarding his prior counsel’s performance. See
Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004). For the same reason, we
do not reach Munanu’s remaining contentions regarding equitable tolling and due
diligence. See id.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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