Fadel Fares v. Loretta E. Lynch , 623 F. App'x 466 ( 2015 )

FILED
NOT FOR PUBLICATION DEC 16 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FADEL ALI FARES, No. 13-72276
Petitioner, Agency No. A055-677-193
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 9, 2015**
Before: WALLACE, RAWLINSON, and IKUTA, Circuit Judges.
Fadel Ali Fares, a native and citizen of Lebanon, 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
conducted in absentia. We have jurisdiction under 8 U.S.C. § 1252. We review
*
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).
for abuse of discretion the denial of a motion to reopen, and review de novo due
process claims. Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir. 2003). We deny
the petition for review.
The agency did not abuse its discretion in denying Fares’s second motion to
reopen as untimely, where he filed the motion over two years after his order of
removal became final. See 8 C.F.R. § 1003.23(b)(4)(ii). Regardless of whether his
wife’s misrepresentations can form the basis for equitable tolling, Fares failed to
establish the due diligence required to toll the filing deadline. See Avagyan v.
Holder, 646 F.3d 672, 679-80 (9th Cir. 2011) (equitable tolling is available to an
alien who is prevented from filing due to deception, fraud or error, and exercised
due diligence in discovering such circumstances). Fares also failed to demonstrate
materially changed country conditions to qualify for the regulatory exception to the
filing deadline. See 8 C.F.R. § 1003.23(b)(4)(i).
The agency did not err in determining that Fares did not establish an
ineffective assistance of counsel claim against his prior attorneys where he did not
meet the procedural requirements set forth in Matter of Lozada, 19 I. & N. Dec.
637 (BIA 1988), and the alleged ineffective assistance is not plain on the face of
the record. See Reyes v. Ashcroft, 358 F.3d 592, 597-98 (9th Cir. 2004).
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Fares contends that the agency violated his right to due process by ruling on
his motion to reopen before he had an opportunity to review the record of
proceedings to obtain information critical to complying with the requirements of
Matter of Lozada for his ineffective assistance of counsel claim. This claim fails
because his motion did not request that the agency hold his case in abeyance until
he reviewed the record. Moreover, he has not established prejudice: because the
BIA denied the motion as untimely due to lack of due diligence, Fares’s
compliance with Lozada would not have affected the outcome. See Robleto-
Pastora v. Holder, 591 F.3d 1051, 1062 (9th Cir. 2010) (due process claim relating
to inability to obtain immigration records failed where petitioner could not show
that the violation potentially affected his eligibility for relief).
The BIA sufficiently articulated its reasons for dismissing his appeal, see
Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010), and Fares’s contention
that the agency failed to consider all relevant factors in its due diligence
determination is unsupported by the record.
In light of this dispositive determination, we need not reach his remaining
contentions. See Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004).
PETITION FOR REVIEW DENIED.
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