FILED NOT FOR PUBLICATION JUL 27 2023 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT SERGIO ENRIQUE RUIZ LOPEZ, No. 22-329 Agency No. Petitioner, A087-681-429 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued & Submitted July 13, 2023 San Francisco, California Before: BEA, BENNETT, and H.A. THOMAS, Circuit Judges. Sergio Enrique Ruiz Lopez (Ruiz), a native and citizen of Mexico, seeks review of the Board of Immigration Appeals’ (BIA) denial of his second motion to reopen removal proceedings. Exercising jurisdiction under 8 U.S.C. § 1252, we grant the petition. Ruiz entered the United States in 1993, when he was six years old. The government charged him with removability in 2009. Ruiz conceded * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. removability and applied only for cancellation of removal. An Immigration Judge (IJ) concluded that Ruiz is statutorily eligible for cancellation but exercised her discretion to deny relief based on his substance abuse disorder. The BIA affirmed the IJ’s denial of relief and later denied Ruiz’s first motion to reopen, which presented evidence of rehabilitation. But Ruiz did not timely petition this court for review of the BIA’s denial of his first motion to reopen. Instead, after the deadline to appeal had passed, he filed a second motion to reopen before the BIA, arguing that his counsel’s failure to timely appeal denial of his first motion to reopen constituted ineffective assistance of counsel (IAC). The BIA denied the second motion to reopen, finding that Ruiz’s failure to file a bar complaint against his allegedly deficient counsel was fatal to his IAC claim. We review the BIA’s denial of a motion to reopen for abuse of discretion. Kaur v. Garland, 2 F.4th 823, 829 (9th Cir. 2021) (citation omitted). “The BIA abuses its discretion when it acts arbitrarily, irrationally, or contrary to the law.” Id. (quoting Martinez v. Barr, 941 F.3d 907, 921 (9th Cir. 2019)). Applying this standard, “[w]e review legal questions de novo and factual findings for substantial evidence.” Id. (citation omitted). Ordinarily, petitioners may file just one motion to reopen removal proceedings, “and that motion must be filed no later than 90 days after the date on which” the removal order became final. 8 C.F.R. § 1003.2(c)(2); 8 U.S.C. § 1229a(c)(7)(A), (C)(i). But as relevant here, those time and numerical restrictions can be waived when a petitioner receives IAC. Hernandez-Ortiz v. 2 22-329 Garland, 32 F.4th 794, 801 (9th Cir. 2022). To successfully make out an IAC claim, a petitioner must generally satisfy certain procedural and substantive requirements. Substantively, petitioners must show both that their counsel’s performance was “egregious” and that they were “substantial[ly] prejudice[d]” as a result. Id. Procedurally, they must comply with three requirements set out by the BIA in Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988): (1) …
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