NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 19 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ANNE WANGARI MWAGIRU, No. 17-73354 18-72177 Petitioner, Agency No. A200-754-599 v. WILLIAM P. BARR, Attorney General, MEMORANDUM* Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted March 6, 2020** Seattle, Washington Before: IKUTA and R. NELSON, Circuit Judges, and OLIVER,*** District Judge. In these consolidated petitions for review, Anne Wangari Mwagiru, a native and citizen of Kenya, seeks review of the Board of Immigration Appeals’s (“BIA”) orders denying her motion to reopen and denying her motion to reconsider. As the * 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 Solomon Oliver, Jr., United States District Judge for the Northern District of Ohio, sitting by designation. parties are familiar with the facts, we do not recount them here. We have jurisdiction under 8 U.S.C. § 1252. We review the denial of motions to reopen or reconsider for abuse of discretion. Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir. 2005). We review factual findings for substantial evidence and review questions of law de novo. Id. at 791–92. We deny the petitions for review in both cases, 17-73354 and 18- 72177. 1. There is no dispute that Mwagiru’s motion to reopen was untimely; it was filed almost three years after the deadline. See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). The BIA did not abuse its discretion in finding that equitable tolling was not warranted because, as explained below, Mwagiru did not provide an adequate basis to excuse the untimeliness of her motion. See Iturribarria v. I.N.S., 321 F.3d 889, 897 (9th Cir. 2003) (we recognize “equitable tolling of deadlines and numerical limits on motions to reopen or reconsider during periods when a petitioner is prevented from filing because of deception, fraud, or error . . .”). Mwagiru argued that equitable tolling was warranted based on the ineffective assistance of her prior attorneys. However, the record clearly shows, and substantial evidence supports the BIA’s finding, that she failed to show that her former attorneys’ performance was inadequate and failed to show prejudice. See Mohammed, 400 F.3d at 793–94 (to prevail on an ineffective assistance of counsel claim, an alien must show that counsel failed to perform with sufficient competence 2 and that she was prejudiced by counsel’s performance; prejudice results when counsel’s performance was so inadequate that it may have affected the outcome of the proceedings). Therefore, the BIA did not abuse its discretion in denying Mwagiru’s untimely motion to reopen on this basis. The BIA did not abuse its discretion in finding that Mwagiru failed to comply with Matter of Lozada.1 Though Matter of Lozada does not require an applicant to file a bar complaint, Mwagiru’s ...
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