Waqqas Hamid Khan v. ERIC H. HOLDER, JR., Attorney General

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WAQQAS HAMID KHAN,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
No. 06-70302
Agency No. A079-634-061
MEMORANDUM*
WAQQAS HAMID KHAN,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
No. 07-71153
Agency No. A079-634-061
On Petitions for Review of Orders of the
Board of Immigration Appeals
FILED
OCT 19 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
2
Submitted October 4, 2010**
San Francisco, California
Before: BEEZER, KLEINFELD, and GRABER, Circuit Judges.
We review two decisions by the Board of Immigration Appeals: one
affirming the denial of Waqqas Hamid Khan’s application for withholding of
removal and protection under the Convention Against Torture, under 8 U.S.C. §
1231(b)(3), and the second denying Khan’s motion to reopen, under 8 U.S.C. §
1229a(c)(7).
The Board affirmed the Immigration Judge’s finding that Khan failed to
establish a clear probability of persecution due to his inconsistent account and
discrepancies in supporting documentation. The Immigration Judge’s adverse
credibility finding was supported by substantial evidence, including discrepancies
between Khan’s oral and written testimony. Lata v. INS, 204 F.3d 1241, 1245 (9th
Cir. 2000). The Board therefore did not err in affirming the denial of Khan’s
application for withholding of removal and protection under the Convention
Against Torture.

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The Board also did not abuse its discretion in denying Khan’s motion to
reopen, which was untimely. 8 C.F.R. § 1003.2(c). The 90-day deadline can be
equitably tolled by a finding of ineffective assistance of counsel. Iturribarria v.
INS, 321 F.3d 889, 897 (9th Cir. 2003). To prevail, Khan must show resulting
prejudice by demonstrating how the outcome of the proceedings might have been
affected. Munoz v. Ashcroft, 339 F.3d 950, 955 (9th Cir. 2003).
Khan failed to show prejudice resulting from ineffective assistance of
counsel. Khan asserts that counsel should have arranged for his father’s
appearance as a witness, but failed to explain how his father’s testimony would
have affected the outcome, given other discrepancies in his documentation and
testimony. Khan therefore failed to show prejudice resulting from his father’s
nonappearance as a witness or other behavior by counsel.
PETITION DENIED.

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