                                                                            FILED
                              NOT FOR PUBLICATION                           DEC 16 2015

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



                              FOR THE NINTH CIRCUIT


FADEL ALI FARES,                                 No. 13-72276

               Petitioner,                       Agency No. A055-677-193

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

               Respondent.


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

                             Submitted December 9, 2015**

Before:        WALLACE, RAWLINSON, and IKUTA, Circuit Judges.

      Fadel Ali Fares, a native and citizen of Lebanon, petitions for review of the

Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an

immigration judge’s order denying his motion to reopen removal proceedings

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


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

process claims. Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir. 2003). We deny

the petition for review.

      The agency did not abuse its discretion in denying Fares’s second motion to

reopen as untimely, where he filed the motion over two years after his order of

removal became final. See 8 C.F.R. § 1003.23(b)(4)(ii). Regardless of whether his

wife’s misrepresentations can form the basis for equitable tolling, Fares failed to

establish the due diligence required to toll the filing deadline. See Avagyan v.

Holder, 646 F.3d 672, 679-80 (9th Cir. 2011) (equitable tolling is available to an

alien who is prevented from filing due to deception, fraud or error, and exercised

due diligence in discovering such circumstances). Fares also failed to demonstrate

materially changed country conditions to qualify for the regulatory exception to the

filing deadline. See 8 C.F.R. § 1003.23(b)(4)(i).

      The agency did not err in determining that Fares did not establish an

ineffective assistance of counsel claim against his prior attorneys where he did not

meet the procedural requirements set forth in Matter of Lozada, 19 I. & N. Dec.

637 (BIA 1988), and the alleged ineffective assistance is not plain on the face of

the record. See Reyes v. Ashcroft, 358 F.3d 592, 597-98 (9th Cir. 2004).




                                          2                                    13-72276
       Fares contends that the agency violated his right to due process by ruling on

his motion to reopen before he had an opportunity to review the record of

proceedings to obtain information critical to complying with the requirements of

Matter of Lozada for his ineffective assistance of counsel claim. This claim fails

because his motion did not request that the agency hold his case in abeyance until

he reviewed the record. Moreover, he has not established prejudice: because the

BIA denied the motion as untimely due to lack of due diligence, Fares’s

compliance with Lozada would not have affected the outcome. See Robleto-

Pastora v. Holder, 591 F.3d 1051, 1062 (9th Cir. 2010) (due process claim relating

to inability to obtain immigration records failed where petitioner could not show

that the violation potentially affected his eligibility for relief).

       The BIA sufficiently articulated its reasons for dismissing his appeal, see

Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010), and Fares’s contention

that the agency failed to consider all relevant factors in its due diligence

determination is unsupported by the record.

       In light of this dispositive determination, we need not reach his remaining

contentions. See Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004).

       PETITION FOR REVIEW DENIED.




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