NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 16 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT DANIIL SHEIKO, No. 20-70356 Petitioner, Agency No. A213-014-454 v. MERRICK B. GARLAND, Attorney MEMORANDUM* General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted April 12, 2021** San Francisco, California Before: M. SMITH, Jr., and IKUTA, Circuit Judges, and VRATIL,*** District Judge. Petitioner Daniil Sheiko seeks review of a decision by the Board of Immigration Appeals (“BIA”) which denied petitioner’s two motions to reopen. We * 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 Kathryn H. Vratil, United States District Judge for the District of Kansas, sitting by designation. have jurisdiction under 8 U.S.C. § 1252. 1. The BIA did not abuse its discretion by dismissing as untimely both of petitioner’s motions to reopen and refusing to equitably toll the deadline to file petitioner’s motions. We review the BIA’s denial of a motion to reopen for abuse of discretion. Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010). A motion to reopen must be filed 90 days after the final administrative order of removal is rendered. 8 U.S.C. § 1229a(c)(7)(C)(i). On July 19, 2018, the BIA summarily dismissed petitioner’s appeal because petitioner, who was represented by counsel, did not file a brief despite indicating an intent to do so. On September 9, 2019, more than a year after the BIA’s dismissal, petitioner filed a motion to reopen. Petitioner filed a second motion to reopen on November 6, 2019. Because both motions were filed more than 90 days after the final decision of the BIA, the BIA did not abuse its discretion in denying the motions as untimely. Likewise, the BIA did not abuse its discretion by refusing to equitably toll the time for petitioner to file motions to reopen. Petitioner argues that the BIA should have equitably tolled the clock on his untimely motions to reopen because of ineffective assistance of counsel. Specifically, petitioner argues that a competent attorney would have filed his I-130 2 20-70356 and I-4851 contemporaneously and, as a result, petitioner would not have been subject to removal from the United States. The BIA found that petitioner did not comply with procedural requirements required to demonstrate ineffective assistance. See Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). To successfully show grounds for equitable tolling on account of ineffective assistance of counsel,2 petitioner must demonstrate that he complied with Lozada. See Salazar-Gonzalez v. Lynch, 798 F.3d 917, 920 (9th Cir. 2015). The record is clear that he did not do so. And petitioner is not excused from complying with Lozada because counsel’s ineffectiveness is not plain on its face. See Guan v. Barr, 925 F.3d 1022, 1033 (9th Cir. 2019). …
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