                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              JAN 28 2014

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

RAHEL SHIFERAW HABTYES,                          No. 06-73793

              Petitioner,                        Agency No. A078-648-361

  v.
                                                 MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,

              Respondent.



RAHEL SHIFERAW HABTYES,                          No. 08-70612

              Petitioner,                        Agency No. A078-648-361

  v.

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


                     On Petition for Review of an Order of the
                         Board of Immigration Appeals
                     Submission Deferred November 5, 2010




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                             Resubmitted July 1, 2013**
                             San Francisco, California

Before: KOZINSKI,*** Chief Judge, THOMAS, Circuit Judge, and RESTANI,
Judge.****

      Petitioner Rahel Shiferaw Habtyes (“Habtyes”) challenges the Board of

Immigration Appeals’ (“BIA”) decision affirming the oral decision of an

immigration judge (“IJ”), finding Habtyes not credible and denying her requested

relief for asylum, withholding of removal, and Convention Against Torture

(“CAT”) relief. The IJ found Habtyes’s testimony to be vague, unresponsive,

“very internally inconsistent, contradicting, and most confusing.” We agree that

the record is replete with factual inconsistencies and conflicts going to the heart of

Habtyes’s claims, both within Habtyes’s testimony and also with respect to her

documentary evidence. Accordingly, the IJ’s credibility determination, adopted by

the BIA, was not clearly erroneous and was supported by substantial evidence. See

Singh-Kaur v. INS, 183 F.3d 1147, 1149–50 (9th Cir. 1999) (“The court must




        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             Judge Cynthia Hall, now deceased, was a member of the original
panel. Chief Judge Kozinski was substituted in her stead.
        ****
             The Honorable Jane A. Restani, Judge of the United States Court of
International Trade, sitting by designation.
                                           2
uphold the BIA’s findings unless the evidence presented would compel a

reasonable finder of fact to reach a contrary result . . . .”).

       Habtyes also challenges the BIA’s denial of her second motion to reopen

(“MTR”). Habtyes asserts that her second MTR should have been granted on the

grounds that her counsel was ineffective for failing to file a petition for review of

her first MTR, which the BIA denied on the merits.

       Putting aside technical issues with the second MTR, failure to file a petition

for review of the first MTR may constitute ineffective assistance of counsel and is

presumptively prejudicial because it denies Habtyes access to the entire system of

appeal. See Dearinger ex rel. Volkova v. Reno, 232 F.3d 1042, 1045 (9th Cir.

2000) (The failure to file an appeal “mandates a presumption of prejudice because

‘the adversary process itself’ has been rendered ‘presumptively unreliable.’”

(quoting Roe v. Flores-Ortega, 528 U.S. 470, 483 (2000)). This presumption may

be overcome, however, where the Petitioner has not demonstrated “plausible

grounds for relief.” See id. at 1046. We review the BIA’s denial of an MTR for

abuse of discretion. See Siong v. INS, 376 F.3d 1030, 1036 (9th Cir. 2004).

       We find no plausible grounds for relief, based on the claims raised in the

first MTR, as Habtyes failed to put forward evidence to support her contested

claims of deficient performance by her former counsel and prejudice. Therefore,


                                             3
the BIA’s decision denying the first MTR would be upheld on appeal under the

deferential abuse of discretion standard. See Oyeniran v. Holder, 672 F.3d 800,

806 (9th Cir. 2012) (applying abuse of discretion standard in reviewing a motion to

reopen).

      PETITIONS DENIED.




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