                                                                            FILED
                             NOT FOR PUBLICATION                            MAR 22 2016

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



                             FOR THE NINTH CIRCUIT


GEVORG GYOZALYAN,                                No. 11-71695

               Petitioner,                       Agency No. A095-415-875

 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.

      Gevorg Gyozalyan, a native of Lebanon and citizen of Armenia, petitions for

review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to

reopen based on ineffective assistance of counsel. We have jurisdiction under

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


          *
             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).
reopen, Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir. 2003), and we deny the

petition for review.

      The BIA did not abuse its discretion in denying Gyozalyan’s motion to

reopen on the ground that it was untimely. See 8 C.F.R. § 1003.2(c)(2).

Gyozalyan failed to establish prejudice from alleged ineffective assistance by his

former attorney, where the marriage that allegedly made Gyozalyan eligible for

adjustment of status occurred after expiration of the 90-day filing period for

reopening. See Iturribarria, 321 F.3d at 899-900 (to establish ineffective

assistance of counsel, a petitioner must show prejudice). Contrary to Gyozalyan’s

contention, at the time his motion to reopen was due, the law was not unsettled

regarding whether the pendency of his previous petition for review in this court

tolled the filing deadline for his motion to reopen. See Matter of Susma, 22 I. & N.

Dec. 947, 948 (BIA 1999) (“[T]he filing of a court action seeking judicial review

does not extend the time for filing a motion to reopen administrative

proceedings.”).

      Because the BIA’s denial of Gyozalyan’s motion to reopen on this basis is

dispositive, we do not reach Gyozalyan’s remaining contentions regarding due

diligence or compliance with Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988).

      PETITION FOR REVIEW DENIED.


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