Opinion
No. 11-71695
03-22-2016
GEVORG GYOZALYAN, Petitioner, v. LORETTA E. LYNCH, Attorney General, Respondent.
NOT FOR PUBLICATION
Agency No. A095-415-875 MEMORANDUM On Petition for Review of an Order of the Board of Immigration Appeals Before: GOODWIN, LEAVY, and CHRISTEN, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Gevorg Gyozalyan, a native of Lebanon and citizen of Armenia, petitions for review of the Board of Immigration Appeals' ("BIA") order denying his motion to reopen based on ineffective assistance of counsel. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir. 2003), and we deny the petition for review.
The BIA did not abuse its discretion in denying Gyozalyan's motion to reopen on the ground that it was untimely. See 8 C.F.R. § 1003.2(c)(2). Gyozalyan failed to establish prejudice from alleged ineffective assistance by his former attorney, where the marriage that allegedly made Gyozalyan eligible for adjustment of status occurred after expiration of the 90-day filing period for reopening. See Iturribarria, 321 F.3d at 899-900 (to establish ineffective assistance of counsel, a petitioner must show prejudice). Contrary to Gyozalyan's contention, at the time his motion to reopen was due, the law was not unsettled regarding whether the pendency of his previous petition for review in this court tolled the filing deadline for his motion to reopen. See Matter of Susma, 22 I. & N. Dec. 947, 948 (BIA 1999) ("[T]he filing of a court action seeking judicial review does not extend the time for filing a motion to reopen administrative proceedings.").
Because the BIA's denial of Gyozalyan's motion to reopen on this basis is dispositive, we do not reach Gyozalyan's remaining contentions regarding due diligence or compliance with Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988).
PETITION FOR REVIEW DENIED.