                                                                           FILED
                             NOT FOR PUBLICATION                               JUL 05 2012

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



ARMANDO CHAN ALBA,                               Nos. 08-74985
                                                      10-71350
               Petitioner,                            10-72812

  v.                                             Agency No. A096-006-998

ERIC H. HOLDER, Jr., Attorney General,
                                                 MEMORANDUM *
               Respondent.



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

                             Submitted June 26, 2012 **

Before:        SCHROEDER, HAWKINS, and GOULD, Circuit Judges.

       In these consolidated petitions for review, Armando Chan Alba, a native and

citizen of the Philippines, petitions for review of the Board of Immigration

Appeals’ (“BIA”) orders dismissing his appeal from an immigration judge’s

decision denying his motion to reopen removal proceedings conducted in absentia


          *
             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).
and denying his motions to reopen and reconsider. We have jurisdiction under

8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to

reopen or reconsider, and review for substantial evidence factual findings.

Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir. 2005). We deny the petition

for review in No. 08-74985, grant the petition for review in No. 10-71350 and

remand for further proceedings, and dismiss as moot the petition for review in No.

10-72812.

      The agency did not abuse its discretion in denying Alba’s September 28,

2007, motion to reopen for failure to establish exceptional circumstances beyond

his control that would excuse his failure to appear for his removal hearing. See

8 U.S.C. § 1229a(e)(1); Celis-Castellano v. Ashcroft, 298 F.3d 888, 892 (9th Cir.

2002). Alba’s contention that the BIA failed to address his argument under the

Health Insurance Portability and Accountability Act of 1996 is not supported by

the record. Finally, the BIA did not abuse its discretion in concluding that Alba

was not entitled to reopening in order to apply for adjustment of status where he

failed to establish prima facie eligibility for that relief. See Delgado-Ortiz v.

Holder, 600 F.3d 1148, 1151 (9th Cir. 2010).

      Substantial evidence does not support the BIA’s finding that Alba failed to

prove his former counsel acted ineffectively for purposes of his equitable tolling


                                            2                    08-74985, 10-71350, 10-72812
claim where the record reflects that counsel’s actions caused Alba to miss his

opportunity to file a timely motion to reopen with the BIA in order to submit a

copy of his immigrant visa petition. See Ray v. Gonzales, 439 F.3d 582, 588-89

(9th Cir. 2006) (attorney’s failure to meet filing deadlines may constitute

ineffective assistance supporting an equitable tolling claim). The BIA abused its

discretion in denying Alba’s September 24, 2009, motion to reopen on the basis of

this finding. We remand to the BIA for further proceedings on Alba’s motion.

      Because we grant Alba’s petition for review of the BIA’s order denying his

September 24, 2009, motion to reopen, we dismiss as moot his petition for review

of the BIA’s subsequent denial of his motion to reopen and reconsider that order.

See Doissaint v. Mukasey, 538 F.3d 1167, 1171 (9th Cir. 2008).

      In No. 08-74985: PETITION FOR REVIEW DENIED.

      In No. 10-71350: PETITION FOR REVIEW GRANTED;

REMANDED.

      In No. 10-72812: PETITION FOR REVIEW DISMISSED.




                                          3                    08-74985, 10-71350, 10-72812
