NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 25 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ALARAZIM KASSIM, No. 20-71242 Petitioner, Agency No. A046-708-731 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted October 21, 2021** San Francisco, California Before: BADE and BUMATAY, Circuit Judges, and SESSIONS,*** District Judge. Alarazim Kassim, a native and citizen of Sierra Leone, petitions for review of a Board of Immigration Appeals’ (“BIA”) decision denying his motion to reopen his * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 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 William K. Sessions III, United States District Judge for the District of Vermont, sitting by designation. removal proceedings. We review the denial of a motion to reopen for abuse of discretion and may grant relief only if the BIA’s decision was “arbitrary, irrational, or contrary to law.” Ocampo v. Holder, 629 F.3d 923, 925 (9th Cir. 2010) (internal quotation marks omitted). We have jurisdiction under 8 U.S.C. § 1252. We dismiss the petition in part and deny the petition in part. 1. The BIA did not abuse its discretion in denying Kassim’s motion to reopen as untimely. Unless equitable tolling is available, a motion to reopen must be filed within 90 days after the final administrative order of removal is rendered. 8 U.S.C. § 1229a(c)(7)(C)(i); Bonilla v. Lynch, 840 F.3d 575, 582 (9th Cir. 2016). The BIA dismissed Kassim’s appeal of his removal order in 2005, yet Kassim did not file his motion to reopen until 2019, a gap of 14 years. Because his motion to reopen was filed more than 90 days after the final decision of the BIA, Kassim’s motion was untimely unless equitable tolling applies. Kassim argues that he is entitled to equitable tolling because he received ineffective assistance of counsel. Specifically, he contends his former counsel failed to contest his removability and filed an incomplete motion to remand. He asserts he was convicted of an offense involving possession of marijuana, which, in Kassim’s view, falls into an exception for removability under 8 U.S.C. § 1227(a)(2)(B)(i). He also claims that his conviction for marijuana does not meet the federal definition of the controlled substance under more recent caselaw. 2 To be eligible for equitable tolling due to ineffective assistance of counsel, a petitioner must demonstrate (1) that counsel’s ineffectiveness prevented him from filing a timely motion; (2) that he showed due diligence in uncovering counsel’s fraud or error; and (3) that he generally followed the procedural requirements in Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). Singh v. Holder, 658 F.3d 879, 884 (9th Cir. 2011). If these requirements are met, the petitioner must then show that counsel’s performance was insufficient, and he suffered prejudice …
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