FILED NOT FOR PUBLICATION MAY 6 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT GHEORGHE MARCUS, Nos. 17-71368 19-70924 Petitioner, Agency No. A096-166-394 v. MERRICK B. GARLAND, Attorney MEMORANDUM* General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted May 4, 2021** Portland, Oregon Before: W. FLETCHER and FRIEDLAND, Circuit Judges, and BLOCK,*** District Judge. * 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 Frederic Block, United States District Judge for the Eastern District of New York, sitting by designation. Gheorghe Marcus petitions for review of two decisions by the Board of Immigration Appeals (“BIA”). In 17-71368, the BIA affirmed the Immigration Judge’s (“IJ”) conclusion that Marcus had filed a frivolous asylum application, and affirmed denials of Marcus’ motion to terminate, his motions to suppress and strike evidence that the IJ relied on during his removal proceedings, and his motion to obtain his Alien file under Dent v. Holder, 627 F.3d 365 (9th Cir. 2010). In 19- 70924, the BIA denied as untimely his motion to reopen. We deny the first petition and dismiss the second. Because the factual and procedural history is known to the parties, we do not recount it here. 1. Motion to Terminate: The Immigration and Nationality Act (“INA”) imposes a five-year statute of limitations on rescission of adjustment of status as a lawful permanent resident. See 8 U.S.C. § 1256(a). The Department of Homeland Security (“DHS”) commenced removal proceedings against Marcus in 2014, seven years after he received adjustment of status. He contends that his removal proceeding was time-barred by § 1256(a) because it was tantamount to a rescission of adjustment of status. He insists that the IJ therefore erred in denying his motion to terminate and the BIA erred in affirming that denial. This argument fails. In this circuit, the statute of limitations in § 1256(a) applies only to rescission of 2 status proceedings and not to removal proceedings. See Oloteo v. INS, 643 F.2d 679, 682–83 (9th Cir. 1981). Marcus has not demonstrated Oloteo is “clearly irreconcilable with the reasoning or theory of intervening higher authority.” Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc). We are therefore bound by our holding in Oloteo. 2. Motion to Suppress: During an interview with a U.S. Citizenship and Immigration Services (“USCIS”) officer concerning his pending application for naturalization, Marcus admitted to knowingly lying on his asylum application. He argues that the IJ should have suppressed this evidence because the USCIS officer had never advised him of his right to counsel. But the government need not notify a noncitizen of his right to counsel until formal proceedings commence. 8 C.F.R. § 287.3(c). Because the USCIS interview took place before DHS formally commenced removal …
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