                                                                           FILED
                            NOT FOR PUBLICATION
                                                                           MAR 06 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


HACI KURT,                                       No. 10-71558

              Petitioner,                        Agency No. A072-117-555

  v.
                                                 MEMORANDUM*
JEFFREY B. SESSIONS, Attorney
General,

              Respondent.


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

                     Submission Deferred December 11, 2014;
                           Submitted March 6, 2017**
                              Pasadena, California

Before: GILMAN,*** GRABER, and CALLAHAN, Circuit Judges.




        *
             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 Honorable Ronald Lee Gilman, Senior Circuit Judge for the U.S.
Court of Appeals for the Sixth Circuit, sitting by designation.
      Haci Kurt petitions for review of the Board of Immigration Appeals’

(“BIA”) denial of his motion to reopen based on ineffective assistance of counsel.

The BIA held that (1) Kurt suffered no prejudice from his attorney’s alleged

ineffectiveness, and (2) Kurt was not entitled to equitable tolling. We have

jurisdiction under 8 U.S.C. § 1252, and we deny the petition.

      1.     We review questions of law, including claims of ineffective assistance

of counsel, de novo. Mohammed v. Gonzales, 400 F.3d 785, 791–92 (9th Cir.

2005). To establish ineffective assistance of counsel, a petitioner must prove that

(1) his attorney acted incompetently and (2) the error was prejudicial to the

petitioner’s case. Id. at 793. “[P]rejudice results when the performance of counsel

was so inadequate that it may have affected the outcome of the proceedings.” Id. at

793–94 (internal quotation marks omitted). Kurt alleges that he was prejudiced by

his prior attorney’s failure to argue, despite the immigration judge’s finding that

Kurt lacked credibility, that Kurt had shown a genuine fear of future persecution

based solely on documentary evidence.      See Al-Harbi v. INS, 242 F.3d 882, 894

(9th Cir. 2001). Such an argument would not have affected the outcome of these



         Because the parties are familiar with the facts and procedural history, we
do not restate them here except as necessary to explain our decision.
        The Ninth Circuit dismissed Kurt’s prior petition and held that the
agency’s adverse credibility determination rested on substantial evidence. Kurt v.
Holder, 324 F. App’x 650, 651 (9th Cir. 2009) (unpublished).

                                           2
proceedings. The documentary evidence presented in Al-Harbi showed concrete

threats specific to a small group of evacuees, including the petitioner. Id. at 887.

By contrast, Kurt’s documentary evidence relates to Kurds generally and most of it

is at least fifteen years old. Unlike the petitioner in Al-Harbi, Kurt did not present

the type of focused documentation that would compel a finding of future

persecution.

      2.       We review for abuse of discretion the BIA’s denial of equitable

tolling. See Jones v. Blanas, 393 F.3d 918, 926 (9th Cir. 2004). Because Kurt has

not shown that raising an Al-Harbi argument would have made any difference in

the outcome of his case, the BIA did not abuse its discretion in denying equitable

tolling. Singh v. Holder, 658 F.3d 879, 887–88 (9th Cir. 2011).

      PETITION DENIED.




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