                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 12-2158
                         ___________________________

                                Janet Njanja Njoroge

                              lllllllllllllllllllllPetitioner

                                            v.

                               Eric H. Holder, Jr.,
                       Attorney General of the United States

                             lllllllllllllllllllllRespondent
                                     ____________

                       Petition for Review of an Order of the
                           Board of Immigration Appeals
                                   ____________

                           Submitted: February 13, 2014
                               Filed: June 3, 2014
                                 ____________

Before SMITH, BEAM, and BENTON, Circuit Judges.
                           ____________

SMITH, Circuit Judge.

       Janet Njanja Njoroge, a citizen of Kenya, petitions for review of an April 2012
order of the Board of Immigration Appeals (BIA), upholding an immigration judge's
(IJ's) May 2010 decision. The IJ denied Njoroge's motion for a continuance and
denied her requests for asylum, withholding of removal, and relief under the
Convention Against Torture (CAT). We deny the petition.
                                     I. Background
        In 2002, Njoroge applied for asylum, withholding of removal, and CAT relief,
asserting that she feared that she would be subjected against her will to female genital
mutilation (FGM). In 2003, the IJ denied asylum and related relief, relying in part on
country-condition evidence of a recent partial ban on FGM practices in Kenya. The
BIA dismissed Njoroge's appeal of the IJ's decision, and Njoroge petitioned this court
for review. While that petition was pending, the Department of Homeland Security
(DHS) moved for a remand, asserting that the BIA had not taken into account the
effectiveness of the FGM ban in Kenya. In 2005, this court granted DHS's unopposed
motion and remanded the case. Thereafter, in 2008, the BIA remanded the case to the
IJ, stating that the parties should be allowed to present updated evidence on FGM
practices in Kenya, and that the IJ should then determine how effective the FGM ban
had been and whether Njoroge "currently" had a well-founded fear of being subjected
to FGM if returned to Kenya.

       At a February 2009 hearing in Minnesota, Njoroge appeared pro se and
informed the IJ that she had moved to North Carolina. The IJ advised the parties that
the "final hearing" would be held in Minnesota on May 5, 2010. On April 18, 2010,
attorney Japheth Matemu filed a notice of appearance and a motion for a continuance,
asserting that Njoroge had recently retained him and that he needed more time to
prepare for the upcoming May 5 hearing. On April 30, 2010, the IJ denied the motion
without comment. Njoroge then attended the May 5 hearing without Matemu.
Njoroge explained to the IJ that Matemu had informed her by telephone the day
before that he could not attend the hearing, but he gave her no reason. Njoroge further
explained that she had first approached Matemu in April 2010 about representing her
and that other attorneys she had consulted were too expensive or were unwilling to
represent her. The IJ ruled that the hearing would go forward, and asked Njoroge if
she objected to the admission of various exhibits. Njoroge indicated that she did not
know how to answer the question because she did not have counsel with her. The IJ
asked Njoroge if she had any updated evidence regarding FGM practices in Kenya,

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and Njoroge indicated that she believed her attorney was working on the preparation
of such evidence. The IJ admitted into evidence two 2008 United Kingdom Reports
on FGM, which DHS had submitted, and the 2009 Country Report on Human Rights
Practices in Kenya. DHS noted its discomfort with proceeding without the presence
of Njoroge's counsel of record and suggested that the IJ attempt to contact Matemu
by telephone. The IJ declined, stating that she had afforded Njoroge 14 months to find
an attorney and prepare her case and characterizing Matemu's failure to appear as a
delay tactic. Njoroge testified that she feared that both she and her daughter—a
citizen of the United States and, at that time, approximately age 9—would be
subjected to FGM in Kenya. The IJ denied asylum and related relief. As to Njoroge's
asserted fear that her daughter would be subjected to FGM, the IJ stated that Njoroge
lacked standing to make such an assertion. Njoroge then appealed to the BIA. In April
2012, the BIA dismissed her appeal, reasoning that the IJ had not erred in denying
Njoroge's motion for a continuance, the proceedings had not been fundamentally
unfair, and Njoroge had not shown prejudice. Njoroge thereafter timely petitioned this
court for review.

                                     II. Discussion
       Njoroge raises three arguments on appeal: (1) that the IJ's denial of her motion
for a continuance was an abuse of discretion, (2) that she was denied her right to
counsel when the May 5 hearing was conducted without the presence of her counsel
of record, and (3) that the proceedings were fundamentally unfair. She also notes that
she had difficulty finding an affordable attorney who was familiar with FGM cases
and willing to take her case. According to Njoroge, her chosen counsel, Matemu,
needed more time to review the voluminous record and assemble updated evidence
regarding current conditions in Kenya. Njoroge had not previously requested a
continuance, and she believes that the IJ was more concerned with expediency than
justice. Njoroge also asserts that she was prejudiced and that she established




                                         -3-
eligibility for asylum and related relief.1 DHS responds that the IJ acted within her
discretion, both in finding that Njoroge had not established good cause for a
continuance and in going forward with the hearing without Njoroge's counsel.

       "The question whether denial of a continuance in an immigration proceeding
constitutes an abuse of discretion cannot be decided through the application of bright-
line rules; it must be resolved on a case by case basis according to the facts and
circumstances of each case." Ponce-Leiva v. Ashcroft, 331 F.3d 369, 377 (3d Cir.
2003) (quotation and citation omitted). We review due process challenges de novo.
Zheng v. Holder, 698 F.3d 710, 714 (8th Cir. 2012).

             It is well-settled that, while there is no Sixth Amendment right to
      counsel, Uspango v. Ashcroft, 289 F.3d 226, 231 (3d Cir. 2002), aliens
      have a statutory right to counsel at their own expense, 8 U.S.C.
      § 1229a(b)(4)(A), and are entitled to the Fifth Amendment's guarantee
      of due process of law in deportation proceedings. Reno v. Flores, 507
      U.S. 292, 306, 113 S. Ct. 1439, 123 L. Ed. 2d 1 (1993). In certain
      circumstances, depriving an alien of the right to counsel may rise to the
      level of a due process violation. United States v. Torres-Sanchez, 68
      F.3d 227, 230 (8th Cir. 1995).

Al Khouri v. Ashcroft, 362 F.3d 461, 464 (8th Cir. 2004).2


      1
       Njoroge incorrectly asserts in her brief that the IJ did not consider the motion
for continuance until the day of the hearing and that the BIA "did not discuss the
application for political asylum that was in the file."

      2
        "[A]liens are free to waive their statutory right to counsel . . . ." Id. (citing
Torres-Sanchez, 68 F.3d at 230 ("An alien may voluntarily waive representation by
counsel, however, and that waiver will be respected.")). In the present case, however,
DHS has not argued that Njoroge waived her statutory right to counsel. Therefore, we
will assume, without deciding, that no waiver has occurred.

                                          -4-
       Njoroge "argues that the denial of a continuance violated [her] statutory right
to counsel. Absent a showing of clear abuse, we typically do not disturb an IJ's
discretionary decision not to continue a hearing." Hernandez-Gil v. Gonzales, 476
F.3d 803, 807 (9th Cir. 2007) (quotation and citation omitted). The Ninth Circuit has
held that "[w]hen an immigrant has engaged counsel and the IJ is aware of the
representation, if counsel fails to appear, the IJ must take reasonable steps to ensure
that the immigrant's statutory right to counsel is honored." Id. at 808 (emphasis
added) ("By declining unreasonably to grant even a brief continuance so that
Hernandez-Gil could locate and appear with his attorney, whom the IJ had been told
was in the building in another courtroom, the IJ denied Hernandez-Gil's statutory
right to counsel.").

       In the present case, the IJ was aware that Njoroge had counsel, and Njoroge
explained to the IJ that counsel had notified her the day before the hearing that he
could not attend. DHS indicated its discomfort with proceeding in counsel's absence
and requested that the IJ attempt to contact Njoroge's counsel via telephone, but the
IJ declined to do so.3


      3
          Specifically, counsel for DHS stated:

             Q. Your Honor, I guess I'm unsure how you're going to proceed
      down the line at this point. I had a chance to confirm with my office, and
      I guess one of my concerns with us proceeding too much further here
      today is that, you know, with the EOIR-28 the respondent's still
      represented by counsel, and I'm feel [sic] that I'm inhibited from asking
      her any questions, if she is a represented party, and I would at least ask
      if maybe the Court could on the record attempt to contact her attorney
      via telephone and have him withdraw or have him appear telephonically
      for the purposes of this hearing. But I guess the Government feels
      constrained at this point by the absence of her counsel, without a way of
      having him withdraw.


                                          -5-
       Assuming, without deciding, that the IJ violated Njoroge's statutory right to
counsel by not at least calling Njoroge's counsel to see that Njoroge's statutory right
to counsel was honored, Njoroge cannot prove prejudice. See Al Khouri, 362 F.3d at
466 ("This finding, however, does not end the analysis because '[t]o demonstrate a
violation of due process, an alien must demonstrate both a fundamental procedural
error and that the error resulted in prejudice.'" (citing Lopez v. Heinauer, 332 F.3d
507, 512 (8th Cir. 2003))); see also Torres–Sanchez, 68 F.3d at 230 ("In this circuit,
the establishment of a fundamentally unfair hearing in violation of due process
requires a showing both of a fundamental procedural error and that the error caused
prejudice; an error cannot render a proceeding fundamentally unfair unless that error
resulted in prejudice." (footnote and citation omitted)).

              "Actual prejudice exists where defects in the deportation
      proceedings may well have resulted in a deportation that would not
      otherwise have occurred." Torres–Sanchez, 68 F.3d at 230 (emphasis
      added). The Ninth Circuit has similarly defined "prejudice" as an error
      that "'potentially . . . affects the outcome of the proceedings,'" Agyeman
      v. INS, 296 F.3d 871, 884 (9th Cir. 2002) (omission in original) (quoting
      Perez–Lastor v. INS, 208 F.3d 773, 780 (9th Cir. 2000)), and the
      Seventh Circuit has defined it as an error that "'had the potential for
      affecting' the outcome of the hearing." Ambati v. Reno, 233 F.3d 1054,
      1061 (7th Cir. 2000) (quoting Kuciemba v. INS, 92 F.3d 496, 501 (7th
      Cir. 1996)).

Al Khouri, 362 F.3d at 466.

       Here, when the IJ asked Njoroge whether she had "submitted any further
country information on FGM in Kenya," Njoroge replied, "I believe that is what my
current lawyer was working on." But neither Njoroge nor her counsel has set forth,
either before the IJ or on appeal, what evidence affirmatively proves that she is
entitled to the relief that she seeks. As a result, she has not proven prejudice.



                                         -6-
                          III. Conclusion
Accordingly, we deny the petition for review.
               ______________________________




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