Patrick Bakkenes v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PATRICK BAKKENES,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 19-70697
Agency No. A086-942-272
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 16, 2022**
San Francisco, California
Before: RAWLINSON and HURWITZ, Circuit Judges, and CARDONE,***
District Judge.
Patrick Bakkenes petitions for review of a decision of the Board of
Immigration Appeals (“BIA”) denying his motion to reopen asserting 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).
*** The Honorable Kathleen Cardone, United States District Judge for the
Western District of Texas, sitting by designation.
FILED
NOV 18 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 4 --

2
assistance of counsel. This Court has jurisdiction pursuant to 8 U.S.C. § 1252(a)(1),
(5). Ortiz-Alfaro v. Holder, 694 F.3d 955, 957–60 (9th Cir. 2012). We review the
denial of a motion to reopen for abuse of discretion. Mohammed v. Gonzales, 400
F.3d 785, 791 (9th Cir. 2005). We review factual findings for substantial evidence
and must accept them unless “any reasonable adjudicator would be compelled to
conclude to the contrary based on the evidence in the record,” Ai Jun Zhi v. Holder,
751 F.3d 1088, 1091 (9th Cir. 2014) (cleaned up), but review ineffective assistance
of counsel claims de novo, Mohammed, 400 F.3d at 791–92.
1. Any evidence that the BIA failed to consider when it reviewed Bakkenes’s
motion to reopen was not “highly probative or potentially dispositive.” Vitug v.
Holder, 723 F.3d 1056, 1064 (9th Cir. 2013) (cleaned up). Bakkenes’s declaration,
as relevant to the ineffective assistance of counsel claim, simply restated his
testimony before the IJ about an incident in a police station, and the BIA had
previously considered that testimony and affirmed the IJ’s conclusion that it did not
show that Bakkenes’s alleged attacker was a police officer. The declaration of
Bakkenes’s sister was cumulative of her prior declaration; as material, it only
described additional threats and does not undermine the IJ’s holding that Bakkenes
had failed to show nexus between any feared persecution and a protected ground.
The articles Bakkenes offered to show changed country conditions largely describe
ongoing police investigations into gang-related murders and the prosecution of

-- 2 of 4 --

3
corrupt police officers. This information does not affect the nexus finding and, if
anything, tends to support the IJ’s finding that the Dutch government would not
acquiesce in any persecution or torture. Bakkenes has not even alleged what
evidence he gave to his former attorney that was not eventually presented to the BIA
nor explained how that evidence would affect the outcome of his case.1
2. Bakkenes has not shown prejudice from any ineffective assistance of
counsel. In its original decision, the BIA expressly considered his arguments about
the police station incident and agreed with the IJ that Bakkenes did not meet his
burden of demonstrating that his alleged assailant was a police officer. When it
denied his motion to reopen, it also used the correct standard for “prejudice,” holding
that he had not shown how unpresented evidence “may have affected the outcome
of his proceedings,” see Maravilla Maravilla v. Ashcroft, 381 F.3d 855, 858 (9th
Cir. 2004), or that he had a “plausible ground for relief,” see Morales Apolinar v.
Mukasey, 514 F.3d 893, 898 (9th Cir. 2008).
Nor did the IJ improperly conflate the standards governing withholding under
the Immigration and Nationality Act (“INA”) and the Convention Against Torture
(“CAT”). The IJ properly rejected Bakkenes’s INA claim because he had not
1 The BIA erroneously stated that the courtesy copy of the BIA’s dismissal of
Bakkenes’s first appeal was not returned as undelivered. But Bakkenes has failed to
show prejudice from any non-delivery; his petition for review from that decision was
timely filed. Bakkenes v. Sessions, No. 16-70344 (9th Cir. Feb. 4, 2016), ECF 1.

-- 3 of 4 --

4
established a nexus to a protected ground and had “not established a clear probability
that the government would harm him or that they would not protect him.” The IJ
rejected Bakkenes’s CAT claim “for the same reasons.” If Bakkenes had not
established a probability of harm by a government actor or that the government
would not protect him from harm from a private individual, he had necessarily also
not established a probability of torture under the CAT. 8 C.F.R. §§ 1208.16(c)(2),
1208.18(a)(1).
3. Even if the presumption of prejudice from the failure to file a brief and the
subsequent dismissal of a petition for that reason extends beyond the context of
habeas corpus review, see Dearinger ex rel. Volkova v. Reno, 232 F.3d 1042, 1044–
46 (9th Cir. 2000), the petition in this case was not denied because of that failure.
Here, the Ninth Circuit panel denied the petition on the merits in response to the
government’s motion for summary adjudication. Bakkenes v. Sessions, No. 16-
70344 (9th Cir. Jan. 11, 2017), ECF 15. Bakkenes has not shown that the decision
may have been different had a brief been filed.
PETITION DENIED.

-- 4 of 4 --