Edgar Perez-Felix v. Loretta E. Lynch , 646 F. App'x 525 ( 2016 )

FILED
NOT FOR PUBLICATION MAR 25 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDGAR ANIBAL PEREZ-FELIX, No. 14-72207
Petitioner, Agency No. A205-414-292
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 15, 2016**
Before: GOODWIN, LEAVY, and CHRISTEN, Circuit Judges.
Edgar Anibal Perez-Felix, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal
from an immigration judge’s (“IJ”) decision denying his motion to reopen removal
proceedings conducted in absentia. We have jurisdiction under 8 U.S.C. § 1252.
*
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).
We review for abuse of discretion the denial of a motion to reopen and review de
novo questions of law. Singh v. INS, 213 F.3d 1050, 1052 (9th Cir. 2000). We
deny the petition for review.
The agency did not abuse its discretion in denying Perez-Felix’s motion to
reopen as untimely, where it was filed over seven months after his final order of
removal, see 8 C.F.R. § 1003.23(b)(4)(ii) (motion to reopen and rescind must be
filed within 180 days), and Perez-Felix did not meaningfully challenge before the
BIA the IJ’s finding that he failed to establish the due diligence required for
equitable tolling of the filing deadline, see Avagyan v. Holder, 646 F.3d 672, 679
(9th Cir. 2011) (equitable tolling is available to a petitioner who is prevented from
timely filing due to deception, fraud, or error, and who exercises due diligence in
discovering such circumstances); Singh v. INS, 213 F.3d at 1054 n. 8 (counsel’s
statements in briefs are not evidence).
Nor did the agency abuse its discretion or violate due process in concluding
Perez-Felix’s ineffective assistance claim was not properly before it, because
Perez-Felix had failed to comply with the procedural requirements set forth in
Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), and the alleged ineffective
assistance was not plain on the face of the record. See Reyes v. Ashcroft, 358 F.3d
592, 594, 597-98 (9th Cir. 2004) (noting the importance of the notice and affidavit
2 14-72207
requirements in assessing the merits of an ineffective assistance of counsel claim);
Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (to prevail on a due process
challenge, a petitioner must show error and substantial prejudice).
In light of our disposition, we need not address Perez-Felix’s remaining
contentions regarding Matter of Lozada and his allegation that his attorney
rendered ineffective assistance.
PETITION FOR REVIEW DENIED.
3 14-72207