Femi Abatan v. Loretta E. Lynch ( 2016 )

FILED
NOT FOR PUBLICATION JAN 26 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FEMI ABATAN, No. 13-74055
Petitioner, Agency No. A078-760-077
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 20, 2016**
Before: CANBY, TASHIMA, and NGUYEN, Circuit Judges.
Femi Abatan, a native and citizen of Nigeria, petitions for review of the
Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s order denying his motion to reopen removal proceedings. We
have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the
*
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).
denial of a motion to reopen, and review de novo constitutional claims.
Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We deny the
petition for review.
The BIA did not abuse its discretion by denying as untimely Abatan’s
motion to reopen on the basis of ineffective assistance of counsel, where he filed
the motion approximately eight years after his final order of removal, see 8 C.F.R.
§ 1003.2(c)(2), and failed to demonstrate the due diligence necessary to warrant
equitable tolling of the filing deadline, see Avagyan v. Holder, 646 F.3d 672, 677
(9th Cir. 2011) (equitable tolling is available “when a petitioner is prevented from
filing because of deception, fraud, or error, as long as the petitioner acts with due
diligence in discovering the deception, fraud or error”) (internal quotation marks
and citation omitted).
The BIA did not abuse its discretion by denying Abatan’s motion to reopen
on the basis of changed country conditions, where Abatan’s new evidence still
failed to establish prima facie eligibility for relief. See Toufighi v. Mukasey, 538
F.3d 988, 996-97 (9th Cir. 2008) (evidence must demonstrate prima facie
eligibility for relief warranting reopening based on changed country conditions).
Abatan’s due process claim therefore fails because he has not shown error.
See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (to prevail on a due process
2 13-74055
challenge, an alien must show error and prejudice).
PETITION FOR REVIEW DENIED.
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