                                                                           FILED
                                                                           MAY 18 2017
                            NOT FOR PUBLICATION
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
                    UNITED STATES COURT OF APPEALS

                            FOR THE NINTH CIRCUIT


RAFAEL LAINEZ-URQUILLA,                          No. 12-73125

              Petitioner,                        Agency Nos. A070-075-301
                                                             A070-218-066
 v.

JEFFERSON B. SESSIONS III,                       MEMORANDUM*
Attorney General,

              Respondent.


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

                        Argued and Submitted May 10, 2017
                               Pasadena, California

Before: CLIFTON and FRIEDLAND, Circuit Judges, and RICE,** Chief District
Judge.

      Rafael Lainez-Urquilla, a native and citizen of El Salvador, petitions for

review of the Board of Immigration Appeals’ denial of his motion to reopen


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Thomas O. Rice, Chief United States District Judge
for the Eastern District of Washington, sitting by designation.
proceedings. Petitioner also argues that the Immigration Judge violated his right to

due process during his 1994 hearing, and that he received ineffective assistance of

counsel throughout his proceedings. Because Petitioner filed his motion to reopen

almost fifteen years after the statutory deadline and has not demonstrated that an

exception to the time limitation applies or that equitable tolling of the deadline is

warranted, we conclude that the BIA did not abuse its discretion in denying

Petitioner’s motion to reopen. We lack jurisdiction to review Petitioner’s due

process and ineffective assistance of counsel claims because he did not exhaust

them before the BIA. We therefore deny the petition in part and dismiss in part.

      A motion to reopen must be filed within ninety days from the date of a final

administrative order of deportation, or on or before September 30, 1996, whichever

date is later. 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.23(b)(1). Because the IJ

issued an order requiring Petitioner to voluntarily depart by September 5, 1994 or

be subject to deportation, Petitioner needed to file his motion to reopen by

September 30, 1996 in order for it to be timely. See id. Petitioner did not file his

motion until July 6, 2011, nearly fifteen years after the deadline.

      The BIA did not abuse its discretion in determining that Petitioner’s

untimely motion did not qualify for an exception to the filing deadline. The time

limitation for filing a motion to reopen does not apply if the motion is made to


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apply for asylum or withholding of removal “based on changed country conditions

arising in the country of nationality or the country to which removal has been

ordered, if such evidence is material and was not available and would not have

been discovered or presented at the previous proceeding.” 8 U.S.C.

§ 1229a(c)(7)(C)(ii). Although Petitioner argues that a rise in El Salvador’s violent

gang activity warrants an exception to the filing deadline to permit him to pursue

asylum, Petitioner has not presented evidence of “individualized relevancy”

indicating that his “predicament is appreciably different from the dangers faced by

h[is] fellow citizens,” or that he would be singled out on a protected ground. See

Najmabadi v. Holder, 597 F.3d 983, 989–90 (9th Cir. 2010) (quoting Singh v. INS,

134 F.3d 962, 967 (9th Cir. 1998)).

      Petitioner also argues that the BIA abused its discretion by not equitably

tolling the deadline. The filing deadline for a motion to reopen may be equitably

tolled “during periods when a petitioner is prevented from filing because of

deception, fraud, or error, as long as the petitioner acts with due diligence in

discovering the deception, fraud, or error.” Iturribarria v. INS., 321 F.3d 889, 897

(9th Cir. 2003). “Ineffective assistance of counsel is [another] basis for equitable

tolling.” Bonilla v. Lynch, 840 F.3d 575, 582 (9th Cir. 2016) (quoting Singh v.

Holder, 658 F.3d 879, 884 (9th Cir. 2011)). In his arguments before the BIA,


                                           3
Petitioner did not offer any indication that deception, fraud, error, or ineffective

assistance of counsel prevented him from timely filing his motion to reopen. Thus,

the BIA did not abuse its discretion in determining that equitable tolling was

inapplicable to the circumstances of Petitioner’s case.

      Petitioner raises two arguments in his petition to this court that he did not

raise before the BIA. Petitioner argues that the IJ violated his due process rights at

his 1994 hearing by not informing him of available relief other than voluntary

departure and that he received ineffective assistance of counsel throughout his

proceedings. Because Petitioner did not raise these claims before the BIA, he failed

to exhaust them. See Rashtabadi v. INS, 23 F.3d 1562, 1567 (9th Cir. 1994)

(reasoning that a petitioner’s claim that an IJ violated due process by failing to

advise him of his rights required exhaustion); Ontiveros-Lopez v. INS, 213 F.3d

1121, 1124 (9th Cir. 2000) (“We [] require an alien who argues ineffective

assistance of counsel to exhaust his administrative remedies by first presenting the

issue to the BIA.”). We therefore lack jurisdiction to review these claims. See

Rashtabadi, 23 F.3d at 1567.

      Lastly, Petitioner has filed a motion to supplement the record with

documents never presented to the BIA. Because our review is limited to “the




                                           4
administrative record on which the order of removal is based,” 8 U.S.C.

§ 1252(b)(4)(A), we deny the motion.

      PETITION DENIED IN PART, DISMISSED IN PART.




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