HAMIMU MUSSA V. ERIC H. HOLDER JR., No. 08-74948 (9th Cir. 2012)

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FILED NOT FOR PUBLICATION MAR 02 2012 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT HAMIMU MUSSA, No. 08-74948 Petitioner, Agency No. A079-578-538 v. MEMORANDUM * ERIC H. HOLDER, Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted February 21, 2012 ** Before: FERNANDEZ, McKEOWN, and BYBEE, Circuit Judges. Hamimu Mussa, a native and citizen of Rwanda, petitions for review of the Board of Immigration Appeals order denying his motion to reopen. We review for abuse of discretion the denial of a motion to reopen, and we review de novo questions of law, Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir. 2003). We deny the petition for review. * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). The BIA did not abuse its discretion in denying Mussa s motion to reopen as untimely where the motion was filed over three years after the BIA s final decision, see 8 C.F.R. § 1003.2(c)(2), and Mussa failed to present evidence of changed circumstances in Rwanda to qualify for an exception to the time limit, see 8 C.F.R. § 1003.2(c)(3)(ii); Malty v. Ashcroft, 381 F.3d 942, 945 (9th Cir. 2004) ( The critical question is . . . whether circumstances have changed sufficiently that a petitioner who previously did not have a legitimate claim for asylum now has a well-founded fear of future persecution. ). Further, the BIA did not abuse its discretion in denying Mussa s motion to reopen based on ineffective assistance of counsel, because he failed to show that he was prejudiced by his former counsel s conduct. See Iturribarria, 321 F.3d at 899-90 (prejudice results when the performance of counsel was so inadequate that it may have affected the outcome of the proceedings ) (internal quotation marks omitted). PETITION FOR REVIEW DENIED. 2 08-74948

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