NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ABEL AMAYA-CORTEZ,

Petitioner,

v.

MERRICK B. GARLAND, Attorney 

General,

Respondent.

No. 23-39

Agency No.

A088-699-944

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted May 8, 2024**

Pasadena, California

Before: TALLMAN, FORREST, and BUMATAY, Circuit Judges.

Abel Amaya-Cortez (“Petitioner”), a native and citizen of El Salvador, seeks 

review of the Board of Immigration Appeals’ (“BIA”) denial of his untimely motion 

to reopen his removal proceedings. As the parties are familiar with the facts, we do 

* 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).

FILED

MAY 10 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 23-39

not recount them here. We have jurisdiction under 8 U.S.C. § 1252(a), and we deny 

the petition.

1. The BIA did not abuse its discretion by concluding that equitable tolling 

of the deadline to file a motion to reopen based on ineffective assistance of counsel 

was not warranted because Petitioner did not comply with the procedural 

requirements of Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). See Singh v. 

Holder, 658 F.3d 879, 884 (9th Cir. 2011) (“To qualify for equitable tolling on 

account of ineffective assistance of counsel, a petitioner must demonstrate . . . that 

he complied with the procedural requirements of Matter of Lozada . . . .”).

Under Lozada, 

“[a] motion based upon a claim of ineffective assistance of counsel 

should be supported by an affidavit of the allegedly aggrieved 

respondent attesting to the relevant facts . . . . includ[ing] a statement 

that sets forth in detail the agreement that was entered into with former 

counsel with respect to the actions to be taken on appeal and what 

counsel did or did not represent to the respondent in this regard . . . .

[F]ormer counsel must be informed of the allegations and allowed the 

opportunity to respond. . . . [And] the motion should reflect whether a 

complaint has been filed with appropriate disciplinary authorities 

regarding such representation, and if not, why not.”

19 I. & N. Dec. at 639; see also Hernandez-Ortiz v. Garland, 32 F.4th 794, 801 (9th 

Cir. 2022). 

Here, Petitioner filed the underlying motion to reopen removal proceedings 

over ten years after the BIA issued its final removal order. Furthermore, Petitioner’s 

affidavit failed to describe the representation agreement between him and his former 
3 23-39

counsel, offer evidence that he informed his former counsel of his claim, or explain 

whether he filed a complaint against his former counsel. As such, Petitioner’s filing 

of his motion to reopen was untimely, and further, he failed to satisfy the Lozada 

procedural requirements. See 8 U.S.C. § 1229a(c)(7)(A), (C) (requiring parties to 

file a motion to reopen removal proceedings within ninety days of the day the final 

administrative decision was issued). Because Petitioner did not comply with the

Lozada requirements, the BIA did not abuse its discretion by declining to equitably 

toll Petitioner’s untimely motion to reopen. See Castillo-Perez v. INS, 212 F.3d 518, 

525–26 (9th Cir. 2000) (requiring “substantial compliance” with the rule of Lozada 

to present a valid claim of ineffective assistance of counsel to the BIA).

2. The BIA also denied Petitioner’s motion to reopen after finding that

Petitioner failed to demonstrate prima facie eligibility for relief because he failed to 

enumerate a protected ground for his feared persecution, Petitioner failed to establish 

materially changed conditions in El Salvador, and no exceptional circumstances 

existed to justify an exercise of discretion to sua sponte reopen Petitioner’s 

proceedings.

Petitioner waived his right to challenge the BIA’s dispositive prima facie

eligibility determination by failing to address the issues in his opening brief. See 

Don v. Gonzales, 476 F.3d 738, 739 n.2 (9th Cir. 2007) (claims not raised or 

discussed in a party’s opening brief are abandoned); Martinez-Serrano v. INS, 94 
4 23-39

F.3d 1256, 1259–60 (9th Cir. 1996) (issues not specifically raised and argued in a 

party’s opening brief are waived); Fed. R. App. P. 28(a)(8)(A) (requiring appellant’s 

brief to contain “appellant’s contentions and the reasons for them, with citations to 

the authorities and parts of the record on which the appellant relies”). Because the 

BIA’s prima facie finding was an independent basis to deny Petitioner’s motion to 

reopen, his waiver of the issue is alone dispositive. See Mendez-Gutierrez v. 

Ashcroft, 340 F.3d 865, 869–70 (9th Cir. 2003) (“[P]rima facie eligibility for the 

relief sought is a prerequisite for the granting of a motion to reopen.”). We note 

Petitioner also failed to address the BIA’s sua sponte finding or to provide any 

arguments as to why the BIA abused its discretion in finding that he failed to 

establish materially changed conditions in El Salvador from the time he was ordered 

removed in 2012 to the time he filed his motion to reopen in 2022. As such, 

Petitioner waived his right to challenge the BIA’s decision on those grounds as well. 

PETITION FOR REVIEW DENIED.