                                                                            FILED
                             NOT FOR PUBLICATION                            MAR 25 2016

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



                             FOR THE NINTH CIRCUIT


EDGAR ANIBAL PEREZ-FELIX,                        No. 14-72207

               Petitioner,                       Agency No. A205-414-292

 v.
                                                 MEMORANDUM*
LORETTA E. LYNCH, Attorney General,

               Respondent.


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

                             Submitted March 15, 2016**

Before:        GOODWIN, LEAVY, and CHRISTEN, Circuit Judges.

      Edgar Anibal Perez-Felix, a native and citizen of Mexico, petitions for

review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal

from an immigration judge’s (“IJ”) decision denying his motion to reopen removal

proceedings conducted in absentia. We have jurisdiction under 8 U.S.C. § 1252.


          *
             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).
We review for abuse of discretion the denial of a motion to reopen and review de

novo questions of law. Singh v. INS, 213 F.3d 1050, 1052 (9th Cir. 2000). We

deny the petition for review.

      The agency did not abuse its discretion in denying Perez-Felix’s motion to

reopen as untimely, where it was filed over seven months after his final order of

removal, see 8 C.F.R. § 1003.23(b)(4)(ii) (motion to reopen and rescind must be

filed within 180 days), and Perez-Felix did not meaningfully challenge before the

BIA the IJ’s finding that he failed to establish the due diligence required for

equitable tolling of the filing deadline, see Avagyan v. Holder, 646 F.3d 672, 679

(9th Cir. 2011) (equitable tolling is available to a petitioner who is prevented from

timely filing due to deception, fraud, or error, and who exercises due diligence in

discovering such circumstances); Singh v. INS, 213 F.3d at 1054 n. 8 (counsel’s

statements in briefs are not evidence).

      Nor did the agency abuse its discretion or violate due process in concluding

Perez-Felix’s ineffective assistance claim was not properly before it, because

Perez-Felix had failed to comply with the procedural requirements set forth in

Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), and the alleged ineffective

assistance was not plain on the face of the record. See Reyes v. Ashcroft, 358 F.3d

592, 594, 597-98 (9th Cir. 2004) (noting the importance of the notice and affidavit


                                           2                                      14-72207
requirements in assessing the merits of an ineffective assistance of counsel claim);

Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (to prevail on a due process

challenge, a petitioner must show error and substantial prejudice).

      In light of our disposition, we need not address Perez-Felix’s remaining

contentions regarding Matter of Lozada and his allegation that his attorney

rendered ineffective assistance.

      PETITION FOR REVIEW DENIED.




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