FILED NOT FOR PUBLICATION MAY 21 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT GEOVANNY ESPEJEL HURTADO, No. 17-70907 Petitioner, Agency No. A200-158-327 v. MEMORANDUM* WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted April 14, 2020** Pasadena, California Before: THOMAS, Chief Judge, and FERNANDEZ and W. FLETCHER, Circuit Judges. Petitioner Geovanny Espejel Hurtado (“Hurtado”) petitions for review of a Board of Immigration Appeals (“BIA”) order denying his late-filed motion to reopen. Hurtado moved to reopen his case on the basis of ineffective assistance of * 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). counsel. He also argued that the immigration judge (“IJ”) presiding over his proceedings abused her discretion in denying his request for a continuance. We have jurisdiction under 8 U.S.C. § 1252. A BIA denial of a motion to reopen is reviewed for abuse of discretion and “is only reversed if it is arbitrary, irrational, or contrary to law.” Perez v. Mukasey, 516 F.3d 770, 773 (9th Cir. 2008) (internal quotation marks and citation omitted). 1. The BIA did not abuse its discretion in holding that Hurtado’s motion to reopen was untimely. Hurtado did not show that he exercised the due diligence needed to toll the deadline, as he presented no evidence in his motion to reopen demonstrating reasonable steps to investigate his immigration attorney’s shortcomings or to pursue relief, and no such evidence is contained in the administrative record. Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir. 2011) (describing factors for assessing due diligence). Hurtado also failed to comply with any of the procedural requirements of Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000). While in practice we have been flexible in requiring the Lozada factors, and have dispensed with them “where counsel’s ineffective assistance was obvious and undisputed on the face of the record,” Reyes v. 2 Ashcroft, 358 F.3d 592, 597 (9th Cir. 2004), the record before us contains no evidence of such error. 2. Hurtado alleges that the IJ abused her discretion in denying his request for a continuance in his underlying removal proceedings. Hurtado appealed the IJ’s decision to the BIA, which affirmed the IJ’s denial. But he did not petition the Ninth Circuit for review from the BIA’s order. Hurtado now attempts to use the BIA’s denial of his motion to reopen as a vehicle to re-litigate this old argument. Absent changed circumstances that would support a motion to reopen, he was required to raise this argument in a petition from the BIA’s decision. The thirty- day limitation period has run on the only petition through which Hurtado could have sought review of the ...
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