                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 17-2486
                                      ____________

                             GIDEON ONCHIRI GEKARA,
                                                Petitioner

                                             v.

                              ATTORNEY GENERAL
                       OF THE UNITED STATES OF AMERICA,
                                                 Respondent
                        __________________________________

                          On a Petition For Review of an Order
                          of the Board of Immigration Appeals
                              (Agency No. A207-085-128)
                       Immigration Judge: Kuyomars Q. Golparvar
                        __________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 December 22, 2017

         Before: GREENAWAY, JR., GREENBERG and ROTH, Circuit Judges

                           (Opinion filed: September 19, 2018)
                                     ____________

                                       OPINION*
                                      ____________


PER CURIAM




*This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Gideon Onchiri Gekara (“Gekara”) petitions for review of the Board of

Immigration Appeals’ decision denying his motion to reopen removal proceedings. For

the reasons that follow, we will deny the petition for review.

       Gekara, a native and citizen of Kenya, was admitted to the United States on or

about August 4, 2006, as a nonimmigrant with an F-1 student visa. He did not comply

with the terms of his visa and his status thus was terminated. On March 10, 2016, the

Department of Homeland Security initiated removal proceedings, charging Gekara,

pursuant to 8 U.S.C. § 1227(a)(1)(C)(i), for failure to maintain or comply with the

conditions of his nonimmigrant status. Gekara conceded the charge and applied for

asylum, withholding of removal, and protection under the Convention Against Torture.

In his application, Gekara stated that he had been and would be harmed in Kenya on

account of his political opinion and ethnicity. Gekara specifically feared harm because of

his involvement in the Orange Democratic Party (“ODP”) and because his family,

members of the Kisii ethnic group, owned land in a Kalenjin-controlled area. He claimed

that, around the time of the 2007 and 2008 election, his parents received threatening

letters from Kalenjins and then Kalenjins evicted them from their land. They were never

given their land back or compensated and now live in a displaced persons camp in Kisii

territory. In addition, his uncle was beaten by members of the Kalenjin community

during the post-election violence and subsequently died of injuries sustained during that

beating. His cousin also was killed by members of the Kalenjin community during the

post-election violence.



                                             2
       The Immigration Judge denied relief, determining that Gekara was statutorily

ineligible for asylum because he did not file his application within one year of his arrival

in the United States; that he did not meet his burden of proof to show that he had suffered

persecution in the past in Kenya because the violence directed toward his parents, uncle,

and cousin was unrelated to him; and that he also did not meet his burden to prove that it

was more likely than not that he would be persecuted in the future on account of his Kisii

ethnicity or political opinion. The IJ denied Gekara’s application for protection under the

CAT for insufficient proof. The Board of Immigration Appeals dismissed Gekara’s

appeal on January 23, 2017, agreeing with the IJ that he did not prove his eligibility for

withholding of removal. The Board agreed with the IJ’s determination that Gekara did

not establish that he suffered past persecution on account of his Kisii ethnicity, and also

agreed with the IJ’s determination that Gekara did not demonstrate a clear probability

that he would be harmed in the future on account of being Kisii. The Board further

agreed with the IJ that there was insufficient evidence to establish that Gekara would be

individually targeted for harm upon his return to Kenya for any reason. The Board

deemed waived the issues of Gekara’s eligibility for withholding of removal based on

political opinion and eligibility for CAT relief. We then denied Gekara’s timely petition

for review, see Gekara v. Att’y Gen. of U.S., 2017 WL 3207135 (3d Cir. July 28, 2017).

       Meanwhile, Gekara filed a timely motion to reopen with the Board, see 8 C.F.R. §

1003.2, alleging ineffective assistance of counsel in violation of his right to due process

of law in connection with his applications for relief. Specifically, Gekara alleged that he

suffered prejudice from prior counsel’s failure to include in his brief before the Board

                                              3
arguments that he showed a clear probability of future persecution on account of his

political opinion and that he more likely than not would be tortured upon his return to

Kenya.

         On June 27, 2017, the Board denied the motion to reopen. The Board reasoned

that, in the prior case, Gekara’s fear of persecution on account of his ethnicity

“dovetail[ed]” with his political persecution claim; that his fear of persecution on account

of his ethnicity was fully addressed on appeal; and that Gekara himself testified that

politics in Kenya are closely tied to the different ethnic groups. The Board stated:

“[Gekara’s] appeal was dismissed because he did not establish [that] he would be

individually targeted for harm upon his return for any reason.” Board Decision, at 2

(internal quotation marks and citation removed). In short, Gekara’s ethnicity and

political opinion claims were effectively the same and fully considered, and thus he failed

to establish that he was prejudiced by his prior counsel’s performance. With respect to

the CAT claim, the Board noted that, in its original decision, it specifically concluded

that Gekara did not establish any individualized risk of harm, and, in his motion to

reopen, he had not meaningfully contested this conclusion, rendering his argument that

the Board applied the wrong “government acquiescence” legal standard irrelevant.

         Gekara has timely petitioned for review. We have jurisdiction under 8 U.S.C. §§

1252(a)(1), (b)(1). 1 Generally, the Court reviews the Board’s denial of a motion to

reopen for an abuse of discretion. Immigration & Naturalization Serv. v. Doherty, 502

U.S. 314, 323 (1992). Under this standard, the Court will reverse the Board’s decision

1
    A motions panel of this Court previously denied Gekara a stay of removal.
                                              4
only if it is arbitrary, irrational, or contrary to law. Sevoian v. Ashcroft, 290 F.3d 166,

174 (3d Cir. 2002). The determination of an underlying procedural due process claim,

such as a claim for ineffective assistance of counsel, is reviewed de novo. Fadiga v. Att’y

Gen. of U.S., 488 F.3d 142, 153-54 (3d Cir. 2007). To make out a Fifth Amendment due

process claim of ineffective assistance of counsel in the context of immigration

proceedings, Gekara, ultimately, must show substantial prejudice, that is, he must show a

reasonable probability that, but for counsel’s error, the result of the proceeding would

have been different. Id. at 159.

       Here, Gekara failed to show that his counsel prejudiced his case by failing to

include in his appeal to the Board that he showed a clear probability of future persecution

on account of his political opinion and that he would be tortured upon his return to

Kenya. The Board properly found that Gekara did not show that he had been

substantially prejudiced by counsel’s performance, because, even if counsel had made a

separate political opinion argument on appeal to the Board, there was no reasonable

probability that the results of his case would have been different. The evidence did not

demonstrate Gekara’s eligibility for withholding of removal on any basis or demonstrate

that he faced any individualized risk of harm if returned to Kenya, two findings

dispositive of the withholding of removal and CAT claims that his counsel might have

argued before the Board. Gekara does not point to any particular or materially different

evidence that his counsel failed to present to bolster his claims. Moreover, he was asked

whether the political parties were also aligned with the ethnic groups in Kenya and he

replied in the affirmative. Thus, his own testimony highlights the fact that political

                                              5
parties align along ethnic lines in Kenya. 2 Gekara’s pro se brief addressing the Board’s

decision to deny his motion to reopen merely reiterates his disagreements with the

Board’s basis for denying his original claims. Although the Board did not explicitly

consider Gekara’s claim of eligibility for withholding of removal based upon his political

opinion, he does not convincingly argue that he was prejudiced by the waiver of this

issue. Similarly, he did not have a reasonable probability of success had his CAT claim

been argued before the Board by his former counsel because he failed to provide any

evidence in his motion to reopen to show that his risk of harm rises to the level of torture

as defined in the CAT regulations, see 8 C.F.R. §§ 1208.18(a)(1)-(2). Thus, the Board’s

decision to deny his motion to reopen was proper.

       For the foregoing reasons, we will deny the petition for review.




2
  In fact, one ethnic group supported one political candidate and the other supported the
opposing political candidate. ODP’s presidential candidate, Raila Odinga, is supported
by the Kisii community; Uhuru Kenyatta, the current President of Kenya, is supported by
the Kalenjin community.
                                             6
