                                                                              FILED
                            NOT FOR PUBLICATION                                FEB 24 2015

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


JAMAL M. EL-ABED, AKA Jamal M.                   No. 11-73508
Elabed,
                                                 Agency No. A092-774-881
              Petitioner,

  v.                                             MEMORANDUM*

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


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

                     Argued and Submitted February 13, 2015
                              Pasadena, California

Before: CHRISTEN and HURWITZ, Circuit Judges, and BURGESS, District
Judge.**

       Jamal El-Abed petitions for review of a Board of Immigration Appeals decision

declining to equitably toll the time limit applicable to his motion to reopen and



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Timothy M. Burgess, District Judge for the U.S.
District Court for the District of Alaska, sitting by designation.
denying the motion as untimely. We find no abuse of discretion, and deny the petition.

      1. The Immigration Judge’s finding that there was reason to believe El-Abed

was a trafficker and thus ineligible for adjustment of status under 8 U.S.C.

§ 1182(a)(2)(C)(i) was supported by substantial evidence. See Alarcon-Serrano v.

INS, 220 F.3d 1116, 1119-20 (9th Cir. 2000). The BIA therefore properly determined

El-Abed had not been prejudiced by any failure by counsel to effectively challenge

the trafficker finding on appeal. See Ortiz v. INS, 179 F.3d 1148, 1153-54 (9th Cir.

1999).

      2. El-Abed filed the motion to reopen that is the subject of this petition more

than four years after the BIA affirmed the IJ’s removal order. It was therefore facially

time-barred. See 8 U.S.C. §§ 1101(a)(47)(B)(i), 1229a(c)(7)(C)(i).

      3. El-Abed seeks equitable tolling of the statutory ninety-day deadline,

claiming that counsel improperly withdrew the applications for asylum, withholding

of removal, and protection under the Convention Against Torture without

authorization, and that he thereafter diligently pursued relief. But El-Abed was

present when the applications were withdrawn before the IJ and must have

“definitively learn[ed] of the harm resulting” from the withdrawal when the removal

order became final. Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir. 2011). El-Abed’s

declaration does not claim that he discussed the allegedly unauthorized withdrawal


                                           2
with counsel in the multi-year period between issuance of the removal order and filing

of the untimely motion to reopen, nor does it explain his failure to do so. We

therefore conclude the BIA did not abuse its discretion in determining El-Abed had

not been sufficiently diligent in pursuing relief to justify equitable tolling. See Singh

v. Gonzales, 491 F.3d 1090, 1096-97 (9th Cir. 2007).

      PETITION DENIED.




                                           3
