NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 4 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ALAA GHASSOUB OBEID, No. 21-865 Agency No. A095-282-938 Petitioner, v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted April 19, 2023 Phoenix, Arizona Before: TALLMAN, OWENS, and BADE, Circuit Judges. Dissent by Judge OWENS. Alaa Ghassoub Obeid, a native and citizen of Lebanon, petitions for review of the Board of Immigration Appeals’ (“BIA”) denial of his motion to reopen removal proceedings. Although Obeid’s motion to reopen was both time and number barred, see 8 U.S.C. § 1229a(c)(7)(A), (C); 8 C.F.R. § 1003.2(c)(2), he argues that those limitations should have been equitably tolled because his prior immigration counsel was ineffective. We have jurisdiction under 8 U.S.C. § 1252 * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. and review the BIA’s denial of a motion to reopen for abuse of discretion. Hernandez-Ortiz v. Garland, 32 F.4th 794, 800 (9th Cir. 2022). “Under this standard of review, we must uphold the agency’s decision unless it is ‘arbitrary, irrational, or contrary to law.’” Id. (quoting Agonafer v. Sessions, 859 F.3d 1198, 1203 (9th Cir. 2017)). We deny the petition. Obeid came to the United States on a student visa in 2001 and married a U.S. citizen in 2002. In 2003, Obeid was indicted for conspiracy to commit money laundering and fell out of legal status because he failed to maintain the full course of study required by the visa. DHS initiated removal proceedings and an immigration judge (“IJ”) ordered Obeid removed in 2005. By 2006, Obeid had been without legal status in the United States for more than one year. Obeid appealed to the BIA and our court, and also sought an adjustment of status based on his marriage. In the course of Obeid’s appeals, the indictment was dismissed pursuant to a plea agreement and his wife divorced him. In 2016, we remanded for the BIA to determine whether Obeid’s divorce invalided his application for an adjustment of status. Obeid v. Lynch, 658 F. App’x 300, 301 (9th Cir. 2016). Before the BIA, Obeid moved for remand to the IJ. In 2017, the BIA denied the motion and held Obeid was ineligible to adjust his status but gave him 60 days to voluntarily depart the United States under 8 U.S.C. § 1229c(b)(1). Obeid failed to depart. Obeid argues he was prejudiced by his former counsel’s failure to properly address the voluntary departure order, as his failure to depart resulted in the 2 21-865 imposition of a ten-year bar to adjustment of status. See 8 U.S.C. § 1229c(d)(1)(B). A claim of ineffective assistance requires a showing that counsel’s performance was deficient and that the deficient performance caused prejudice.1 Singh v. Holder, 658 F.3d 879, 885 (9th Cir. 2011). Prejudice exists when “counsel’s performance was …
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