United States Court of Appeals

For the Eighth Circuit

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No. 12-2158

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Janet Njanja Njoroge

lllllllllllllllllllllPetitioner

v.

Eric H. Holder, Jr., 

Attorney General of the United States

lllllllllllllllllllllRespondent

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Petition for Review of an Order of the

 Board of Immigration Appeals

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 Submitted: February 13, 2014

 Filed: June 3, 2014

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Before SMITH, BEAM, and BENTON, Circuit Judges.

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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 thatshe feared thatshe 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 ofthe 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

practicesin 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 thatshe 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 thatshe 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 IJstated 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 notshown 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

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eligibility for asylum and related relief. DHS responds that the IJ acted within her

1

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 brightline 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

Njoroge incorrectly asserts in her brief that the IJ did not consider the motion

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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." 

"[A]liens are free to waive their statutory right to counsel . . . ." Id. (citing 2

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. 

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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

Specifically, counsel for DHS stated:

3

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. 

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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. 

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III. Conclusion

Accordingly, we deny the petition for review. 

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