Gevorg Gyozalyan v. LORETTA E. LYNCH, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GEVORG GYOZALYAN,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
No. 11-71695
Agency No. A095-415-875
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 15, 2016**
Before: GOODWIN, LEAVY, and CHRISTEN, Circuit Judges.
Gevorg Gyozalyan, a native of Lebanon and citizen of Armenia, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to
reopen based on ineffective assistance of counsel. We have jurisdiction under
8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to
FILED
MAR 22 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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reopen, Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir. 2003), and we deny the
petition for review.
The BIA did not abuse its discretion in denying Gyozalyan’s motion to
reopen on the ground that it was untimely. See 8 C.F.R. § 1003.2(c)(2).
Gyozalyan failed to establish prejudice from alleged ineffective assistance by his
former attorney, where the marriage that allegedly made Gyozalyan eligible for
adjustment of status occurred after expiration of the 90-day filing period for
reopening. See Iturribarria, 321 F.3d at 899-900 (to establish ineffective
assistance of counsel, a petitioner must show prejudice). Contrary to Gyozalyan’s
contention, at the time his motion to reopen was due, the law was not unsettled
regarding whether the pendency of his previous petition for review in this court
tolled the filing deadline for his motion to reopen. See Matter of Susma, 22 I. & N.
Dec. 947, 948 (BIA 1999) (“[T]he filing of a court action seeking judicial review
does not extend the time for filing a motion to reopen administrative
proceedings.”).
Because the BIA’s denial of Gyozalyan’s motion to reopen on this basis is
dispositive, we do not reach Gyozalyan’s remaining contentions regarding due
diligence or compliance with Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988).
PETITION FOR REVIEW DENIED.
11-71695 2

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