Mwangi v. Barr, No. 18-1970 (8th Cir. 2019)
Annotate this Case
The Eighth Circuit denied the petition for review of the BIA's denial of petitioner's untimely motion to reopen. The court agreed with the Second Circuit's rejection of the argument that denial of an unopposed non-frivolous motion to reopen is presumptively an abuse of discretion because the burden is on the movant to establish his entitlement to reopening and there is no statutory or regulatory requirement that the Government file an opposition. The court held that the BIA did not abuse its discretion in ruling on the merits of petitioner's motion.
The court also held that the BIA did not abuse its discretion in concluding that petitioner failed to show that former counsel's incompetence prejudiced his asylum and withholding of removal claims. Furthermore, there was no abuse of discretion in denying petitioner equitable tolling for his 17 month delay for filing the motion to reopen. Finally, there was no constitutional right under the Fifth Amendment to effective assistance of counsel in a removal proceeding.
Court Description: Loken, Author, with Wollman and Stras, Circuit Judges] Petition for Review - Immigration. The BIA is not required to grant an unopposed motion to reopen as the burden is always on petitioner to establish entitlement to reopening and there is no statutory or regulatory requirement that the government file an opposition; the BIA did not abuse it discretion in concluding petitioner failed to show that his former counsel's incompetence prejudiced his asylum and withholding of removal claims;the BIA did not abuse its discretion in finding petitioner was not entitled to equitably toll the 90-day deadline for filing a motion to reopen; the BIA did not abuse its discretion or commit an error of law by not explicitly addressing whether petitioner's former counsel's conduct violated petitioner's right to due process as there is no constitutional right to effective assistance of counsel in a removal proceeding. Judge Stras, concurring in part and concurring in the judgment.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.