                                                                            FILED
                            NOT FOR PUBLICATION                              NOV 16 2015

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



                            FOR THE NINTH CIRCUIT


SUKHINDER SINGH, AKA Sukhjinder                  Nos. 11-73516, 12-70214
Singh-Toor,
                                                 Agency No. A073-413-757
              Petitioner,

  v.                                             MEMORANDUM*

LORETTA E. LYNCH, Attorney General,

              Respondent.


                      On Petitions for Review of Orders of the
                          Board of Immigration Appeals

                            Submitted October 21, 2015**
                              San Francisco, California

Before: BLACK***, CLIFTON and N.R. SMITH, Circuit Judges.

       Sukhinder Singh, a native and citizen of India, petitions for review of the

Board of Immigration Appeals’ (BIA) orders denying his motions to reconsider

        *
             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 Susan H. Black, Senior Circuit Judge for the U.S.
Court of Appeals for the Eleventh Circuit, sitting by designation.
and to reopen removal proceedings. We have jurisdiction under 8 U.S.C. § 1252,

and we deny the petitions for review.

      Singh was granted asylum in 1996. In 2002, the Immigration and

Naturalization Service (INS) filed a motion to reopen Singh’s proceedings,

alleging fraud. A check of fingerprints when Singh pursued adjustment of status

revealed that he was the respondent in two cases, one filed in Texas and the other

filed in California. Singh did not let either Immigration Judge (IJ) know he had

another ongoing asylum claim, and the claims presented in each case were

inconsistent. Following the grant of asylum in one case, Singh fraudulently

advised the IJ in the other case that he had emigrated to the Philippines, causing the

INS to agree to termination without prejudice. Following an evidentiary hearing in

2004, Singh’s grant of asylum was vacated for fraud, and Singh was ordered to be

deported to India.

      In 2011, Singh filed an untimely motion to reopen alleging he received

ineffective assistance of counsel in his removal proceedings. The BIA denied

Singh’s motion to reopen. Singh then filed a motion to reconsider the denial of the

motion to reopen, which the BIA also denied.

      A motion to reopen proceedings must state the new facts that will be proven

at a hearing and must be supported by affidavits or other evidence. 8 C.F.R.


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§ 1003.2(c)(1). A motion to reconsider must identify an error of fact or law in the

BIA’s earlier decision and must be supported by authority. 8 C.F.R.

§ 1003.2(b)(1). We review for abuse of discretion the BIA’s denial of a motion to

reopen or to reconsider. Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir.

2005).

      In order for the BIA to assess the merits of an alien’s ineffective assistance

of counsel claim, an alien must ordinarily meet the three requirements set forth in

Matter of Lozada, 19 I.&N. Dec. 637 (BIA 1988). Castillo-Perez v. INS, 212 F.3d

518, 525 (9th Cir. 2000). Lozada requires a petitioner seeking to reopen based on

a claim of ineffective assistance of counsel to:

      1) submit an affidavit explaining his agreement with former counsel
      regarding his legal representation, 2) present evidence that prior
      counsel has been informed of the allegations against her and given an
      opportunity to respond, [and] 3) either show that a complaint against
      prior counsel was filed with the proper disciplinary authorities or
      explain why no such complaint was filed.

Iturribarria v. INS, 321 F.3d 889, 900 (9th Cir. 2003). “[U]nder ordinary

circumstances the BIA does not abuse its discretion when it denies a motion to . . .

reopen based on alleged ineffective assistance of counsel where the petitioner fails

to meet the requirements of Lozada.” Castillo-Perez, 212 F.3d at 525. Where the




                                          -3-
facts are plain on the face of the administrative record, however, the requirements

of Lozada are not dispositive. Id.

      The BIA did not abuse its discretion in denying Singh’s motions to reopen

and to reconsider as he failed to substantially comply with the Lozada

requirements. Further, Singh is not excused from substantially complying with

Lozada as the relevant facts supporting his ineffective assistance of counsel claims

are not plain from the record.

      PETITIONS FOR REVIEW DENIED.




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