UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

JUAN HERNANDEZ-ORTIZ, No. 16-72752 Petitioner, Agency No. v. A076-272-560

MERRICK B. GARLAND, Attorney General, OPINION Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted February 16, 2022 * Pasadena, California

Filed April 26, 2022

Before: Daniel A. Bress and Patrick J. Bumatay, Circuit Judges, and Sharon L. Gleason, ** District Judge.

Opinion by Judge Bress

* The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). ** The Honorable Sharon L. Gleason, Chief United States District Judge for the District of Alaska, sitting by designation. 2 HERNANDEZ-ORTIZ V. GARLAND

SUMMARY ***

Immigration

Denying a petition for review of the Board of Immigration Appeals’ denial of an untimely motion to reopen, the panel held that the Board did not abuse its discretion in concluding that petitioner did not warrant equitable tolling of the time limitation on his motion based on alleged ineffective assistance of counsel or err in declining to excuse the untimely motion due to materially changed country conditions in Mexico.

The panel held that under the circumstances of this case, where there was no apparent prospect of avoiding the time bar, petitioner failed to show that his prior counsel acted deficiently in failing to file earlier untimely motions to reopen. The panel explained that petitioner failed to show that he could have pursued a motion based on changed circumstances, or that his lawyers knew or should have known of such possible grounds for seeking reopening. Moreover, the panel concluded that the Board did not err in determining that petitioner’s counsel’s actions in pursuing other options on his behalf were permissible “tactical decisions” at the time they were made. The panel also held that petitioner failed to establish that his counsel’s actions caused him prejudice, because had his prior counsel filed motions to reopen, there would have been no valid basis to excuse the untimeliness.

*** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. HERNANDEZ-ORTIZ V. GARLAND 3

As to petitioner’s motion to reopen based on changed country conditions, the panel first noted that petitioner waived review of the Board’s determination that he failed to establish prima facie eligibility for asylum, withholding, or CAT protection. Observing that petitioner’s motion to reopen failed on this ground alone, the panel nevertheless concluded that the agency did not abuse its discretion in concluding that petitioner did not sufficiently demonstrate materially changed country conditions in Mexico to excuse the untimely filing of his motion.

COUNSEL Nikhil M. Shah, Marina Del Rey, California, for Petitioner. Jessica A. Dawgert, Senior Litigation Counsel; Lori B. Warlick, Trial Attorney; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent. 4 HERNANDEZ-ORTIZ V. GARLAND

OPINION BRESS, Circuit Judge:

The petitioner in this case filed a motion to reopen his immigration proceedings over sixteen years after the statutory deadline for doing so had passed. He principally argues that the deadline should be equitably tolled because he allegedly received ineffective assistance of counsel when his prior lawyers d