                                                                              FILED
                            NOT FOR PUBLICATION                                JUN 19 2015

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



                            FOR THE NINTH CIRCUIT


DON SUSIL PREMATHILAKA                           No. 12-70539
WIJESINGHE,
                                                 Agency No. A070-632-552
              Petitioner,

 v.                                              MEMORANDUM*

LORETTA E. LYNCH, Attorney General,

              Respondent.


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

                            Submitted June 11, 2015**
                             San Francisco, California

Before: SCHROEDER and IKUTA, Circuit Judges and SEABRIGHT,*** District
Judge.




        *
             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 J. Michael Seabright, United States District Judge for
the District of Hawaii, sitting by designation.
      Petitioner Don Susil P. Wijesinghe petitions for review of a Board of

Immigration Appeals’ (“BIA”) order denying his third motion to reopen as time-

and number-barred. Having reviewed the BIA’s denial of the motion for abuse of

discretion, see Meza-Vallejos v. Holder, 669 F.3d 920, 923 (9th Cir. 2012), we

deny the petition for review.

      Wijesinghe argues that the BIA abused its discretion by denying his motion

as time- and number-barred. He claims he was entitled to equitable tolling on

account of ineffective assistance of his prior counsel. The BIA concluded

Wijesinghe was not entitled to equitable tolling because he could not show

prejudice from his former attorneys’ ineffective assistance.

      Even assuming that Wijesinghe is entitled to some equitable tolling,

Wijesinghe’s third motion to reopen remains untimely. Equitable tolling of the 90-

day deadline for filing motions to reopen continues until the date counsel’s error is

discovered, or with due diligence, should have been discovered. Iturribarria v.

INS, 321 F.3d 889, 897–99 (9th Cir. 2003). Because the terrorist bar is what

prevents Wijesinghe’s eligibility for relief, the relevant error here is the failure to

petition for review of the BIA’s decision involving the terrorist bar. See Avagyan

v. Holder, 646 F.3d 672, 680–82 (9th Cir. 2011) (analyzing the timeliness of each

pertinent incidence of alleged ineffective assistance separately). According to


                                            2
Wijesinghe, he learned of this error on April 9, 2010. However, his third motion to

reopen (the only one which he now petitions for review) was filed August 22,

2011, well over 90 days after that date. Wijesinghe has not alleged any

ineffectiveness on the part of the attorney representing him on his second motion to

reopen which would have prevented him from timely filing a third motion.

      The petition for review is DENIED.




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