                                                                           FILED
                            NOT FOR PUBLICATION
                                                                            DEC 07 2015
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


BALTAZAR MAGALLON-DEL                  )      Nos. 11-73484, 12-70821
TORO,                                  )
                                       )      Agency No. A076-342-659
             Petitioner,               )
                                       )      MEMORANDUM*
             v.                        )
                                       )
LORETTA E. LYNCH, Attorney             )
General,                               )
                                       )
             Respondent.               )
                                       )

                       On Petition for Review of an Order of
                        the Board of Immigration Appeals

                           Submitted November 19, 2015**
                              San Francisco, California

Before: FERNANDEZ and M. SMITH, Circuit Judges, and SCHEINDLIN,***
Senior District Judge.

      Baltazar Magallon-Del Toro, a native and citizen of Mexico, petitions for


      *
        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).
      ***
          The Honorable Shira Ann Scheindlin, Senior District Judge for the U.S.
District Court for the Southern District of New York, sitting by designation.
consolidated review of the Board of Immigration Appeals’ (BIA) denials of his

motions to reopen and reconsider.1 Magallon-Del Toro argued that he was entitled

to equitable tolling of the 90-day statute of limitations due to ineffective assistance

of counsel.2 We review BIA denials of motions to reopen and reconsider for abuse

of discretion,3 and review de novo questions of law and constitutional claims.4 We

deny the petitions.5

      Ineffective assistance of counsel may be grounds for reopening immigration

proceedings where a petitioner establishes a due process violation under the Fifth

Amendment.6 Magallon-Del Toro’s motion to reopen alleged ineffective

assistance by his three prior representatives (“Lawyers 1, 2, and 3,” respectively).

Magallon-Del Toro now argues that during his removal hearing, Lawyers 1 and 2



      1
             See 8 C.F.R. § 1003.2.
      2
             See id. § 1003.2(c).
      3
             See Toufighi v. Mukasey, 538 F.3d 988, 992-93 (9th Cir. 2008).
      4
             See Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005).
      5
             Although Magallon-Del Toro filed petitions for review of the BIA’s
denials of both his motions to reopen and reconsider, he states in his briefing that
he challenges only the denial of his motion to reopen. Accordingly, the petition for
review of the motion to reconsider is denied as waived, and this memorandum
disposition addresses only the petition for review of the motion to reopen.
      6
             See Lara-Torres v. Ashcroft, 383 F.3d 968, 973 (9th Cir. 2004).

                                           2
abandoned their agreed-upon plan to accept voluntary departure only if

the Immigration Judge (“IJ”) denied him additional time to apply for withholding

of removal and relief under the Convention Against Torture (“CAT”). Magallon-

Del Toro also argues that Lawyer 3 — who brought earlier, unsuccessful motions

to reopen and reconsider on his behalf — was ineffective because he failed to

explain the extent of Lawyers 1 and 2’s ineffectiveness.7

      Magallon-Del Toro has not established that the removal hearing was so

fundamentally unfair as to give rise to a due process violation. Rather, the record

supports the BIA’s finding that Lawyers 1 and 2 acted, for strategic reasons, based

on consultation with their client. Although the record indicates that Magallon-Del

Toro could follow and participate in the hearing (he had a Spanish interpreter and

at times addressed the IJ in English), and that the IJ offered him an additional week

to apply for withholding and CAT relief, he accepted voluntary departure.

Additionally, Magallon-Del Toro’s own conflicting statements in the record —

including that Lawyers 1 and 2 failed to explain the availability of withholding and

CAT relief before the hearing, such that he believed voluntary departure to be his

only option — undermine his claims against his prior representatives. As

      7
             See Magallon-Del Toro v. Mukasey, 285 Fed. App’x 358, 358-59 (9th
Cir. 2008) (affirming the BIA’s denial of Magallon-Del Toro’s prior motions to
reopen and reconsider).

                                          3
Magallon-Del Toro’s ineffectiveness claim against Lawyer 3 is predicated on

ineffectiveness by Lawyers 1 and 2, the BIA also properly concluded that he had

not established ineffective assistance by Lawyer 3.8 Petitions DENIED.




      8
              To the extent that Magallon-Del Toro argues that the BIA should have
exercised its sua sponte authority to reopen his removal proceedings, this Court
lacks jurisdiction to review that decision. See Go v. Holder, 744 F.3d 604, 609-10
(9th Cir. 2014).

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