UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________MARIO SALVADOR SORIANOMENDOSA, Petitioner,

v. WILLIAM P. BARR, United States Attorney General,  Respondent. No. 18-9535 (Petition for Review)

________________ _________________ ORDER AND JUDGMENT **

________________ _________________ Before HOLMES , PHILLIPS , and EID , Circuit Judges.

________________ _________________ Mario Salvador Soriano-Mendosa , a native and citizen of El Sal vador, seeks review of a Board of Immigration Appeals’ (BIA’s) decision that upheld the denial of his

 In accordance with Rule 43(c)(2) of the Federal Rules of Appel late Procedure, William P. Barr is sub stituted for Jefferson B. Sess ions, III, as the respondent in this action.

** After examining the briefs and appellate record, this panel ha s determined unanimously to honor the parties ’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir . R. 34.1(G). The case is ther efore submitted without oral argument. T his order and judgment is no t binding precedent, except under the doctrines of la w of the case, res judicata, an d collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### April 9, 2019
Elisabeth A. Shumaker Clerk of Court2 motion to reopen immi gration proceedings a nd rescind his remova l order. Exercising jurisdiction under 8 U .S.C. § 1252(a), we de ny Soriano’s petiti on. B ACKGROUND Soriano entered the United Stat es illegally on April 7, 2009, when he was seventeen years old. The Departm ent of Homeland Security quick ly apprehended him and began removal proceedings b y filing a notice to appear and a notice of hearing. Because he was an unaccompanied minor, he was released to his u ncle, who lived in Utah. On May 26, 2011, Soriano appear ed with attorney Scott T. Posto n before an Immigration Judge (IJ) and was notified that his case was set f or a removal hearing to be conducted at 1 p.m. on September 29, 2011, in Salt Lake City, U tah. 1 When Soriano failed to appear, the IJ conducted the hearing in absentia, fou nd him removable as charged, and ordered him removed to El Salvador. Over five-and-a-half years lat er, on May 24, 2017, Soriano fil ed a motion through new counsel to reopen the immigra tion proceedings and rescind t he removal order. Soriano argued that Poston had provided ineffective assistance by “not inform[ing] [him] of [the] September 29, 2011[,] calendar hearing until the morni ng of the scheduled hearing,” when he was in California. R. at 713. According to Soriano, he could not travel to Utah on such short no tice. Soriano indicated he lear ned of the removal order’s

1 At the May 26 hearing, Soriano “r eceived oral notice of” the S eptember 29 hearing, R. at 605, and Poston received written notice, id. at 862-63.3 entry sometime “[a]fter the hear ing in September of 2011,” but no later than “July of 2012,” when he was told by anoth er attorney that “it would be v ery difficult to fight [the] removal order.” Id. at 745. In addition to complaini ng of Poston’s failure to sec ure his attendance at the hearing, Soria no complained of Poston’s filin g of an application for special immigrant juvenile statu s, rather than an asylum applic ation, and Poston’s failure to respond to a request from the Citizenship and Immigration Se rvices for evidence in support of special immigrant juve nile status. Soriano claimed in the motion to reopen that despite meeting with curre nt counsel in 2014, he did not d iscover Poston’s ineffective assistance until Marc h 2017, when current counsel o btained and reviewed his immigration record. An IJ construed Soriano’s moti on as seeking reopening to resci nd under 8 U.S.C. § 1229a(b)(5)(C)(i), and reopening without rescission under 8 U .S.C. § 1229a(c)(7). The IJ denied both aspects of Soriano’s motion. Specifically, in regard to a § 1229a(b)(5)(C)(i) reopening, th e IJ determined that Soriano could not equitably toll the 180-day time limit for see king rescission because he did not exercise due diligence in raising Poston’s alleged inef fective assistance. The IJ stressed that Soriano began mee ting with different attorneys as early as 2012 to avoid removal, and even his current a ttorney took nearly three years to move for reopening. The IJ further concluded that eve n if Soriano had demonstrated due diligence, he was not4 prejudiced by any ineffective as sistance because he had been pe rsonally notified of the September 2011 hearing four months earlier. 2 As for a subsection (c)(7) gener al reopening, the IJ again not ed Soriano’s lack of due diligence as a barrier to e quitably tolling the limitations period. And even if Soriano had diligently pursued his rights , the IJ said, he failed to sh ow that Poston’s representation was prejudicial with respect to either (1) the filing of a special-immigrantjuvenile-status application, rath er than an asylum application, given Soriano’s failure to show he was eligible for asylum; or (2) Post on’s failure to res pond to Citizenship and Immigration Services’ request for evidence in support of specia l immigrant juvenile status, given that the agency lat er sua sponte reopened his app lication. The BIA adopted and affirmed t he IJ’s decision “for the reason s stated therein.”
R. at 4.
D ISCUSSION I. Standards of Review “We review the BIA’s decision on a motion to re open only for a n abuse of discretion.” Maatougui v. Holder , 738 F.3d 1230, 1239 (10t h Cir. 2013) (brackets and internal quotation marks omitte d). “[M]otions to reopen immigr ation cases are plainly disfavored, and [the alien] bears a heavy burden to show the BI A abused its discretion.”

2 The IJ found that Soriano had me t the preliminary requirements of In re Lozada , 19 I. & N. Dec. 637, 638-39 (BIA), aff’d , 857 F.2d 10, 14 (1st Cir. 1988), for bringing an ineffective-assistance claim. See Osei v. INS , 305 F.3d 1205, 1209 n.2 (10th Cir. 2002) (discussing the Lozada requirements: pr oviding a supporting affidavit, allowing former couns el the opportunity to respond, and indicating whether a disciplinary complaint has been filed).5 Id. (brackets and internal quotatio n marks omitted). “The BIA abu ses its discretion when its decision provides no rational explanation, inexplicably dep arts from established policies, is devoid of any reason ing, or contains only summary or conclusory statements.”
Id . (internal quotation marks omit ted). Where, as here, the BIA adopted and affirmed the IJ’s decision in a brief opinion , we review the BIA’s opinion b y “consulting the IJ’s more complete explanation of those same grounds.” Uanreroro v. Gonzales , 443 F.3d 1197, 1204 (10th Cir. 2006). II. Motion to Reopen & Re scind (§ 1229a(b)(5)(C)(i)) An in absentia removal order may be rescinded upon a motion to reopen filed within 180 days of the order’s date if t he alien shows that his failure to appear was due to exceptional circumstances. 8 U.S.C. § 1229a(b)(5)(C)(i). 3 Because Soriano moved to reopen long after the 180-day per iod had expired, he sought to equitably toll that period by claiming Poston provided ine ffective assistance. While inef fective assistance of counsel may toll the filing pe riod for a motion to reopen, Riley v. INS , 310 F.3d 1253, 1258 (10th Cir. 2002), Soriano must show that he exercised due diligence in pursuing his case during the period he seeks to toll, Mahamat v. Gonzales , 430 F.3d 1281, 1283 (10th Cir. 2005).

3 A motion to reopen for rescissi on of an in abstentia removal o rder may be filed at any time if the alien s hows either that (1) he “did no t receive notice in accordance with [8 U.S.C. § 1229( a)(1) or (2)]”; or (2) he “was in Federal or State custody and the failure to appear was through no fault of [his own].” 8 U.S.C. § 1229a(b)(5)(C)(ii). Soriano does not invoke either of these situations.6 A. Due Diligence Soriano argues that he diligen tly moved to reopen as soon as h e learned of Poston’s ineffective assistance from his current attorney in Ma rch 2017. With the 180-day period running from that date, Soriano asserts that his May 2017 motion to reopen was timely. He claims tha t he could not have acted befo re March 2017 because (1) he did not know of Poston’s ineffective assistance; and (2) Poston and other attorneys “informed [him] that it would be too late to take any action” t o reopen his case. Pet’r Opening Br. at 6. These claims do not show an abuse of agency discretion. First, Soriano initially consulte d with his current attorney i n 2014. He does not explain why it took roughly three years to obtain and review th e immigration records and to uncover Poston’s ineffectiv eness. Moreover, long before 201 4, Soriano suspected that Poston had been ineffe ctive. Indeed, in a declaration attached to the motion to reopen, Soriano said he recognized as ear ly as May 2011 that Poston’s “ lack of competence was becoming a problem.” R. at 744 . And throughout the declaratio n, Soriano faulted Poston for allowing him to miss the Sept ember 2011 hearing and for not “reopen[ing] the case,”
id. at 745. Thus, it was not unreas onable for the BIA or IJ to dou bt Soriano’s claim that the time from 2014 to May 2017 wa s diligently spent uncovering Poston’s ineffectiveness. Second, Soriano’s declaration cas ts doubt on his assertion tha t he delayed acting because other attorney s had told him it was too late. Indeed, Soriano declared that in 2012 he visited two law firms an d was told that reopening his c ase would be “difficult” or “very difficult.” Id. at 745. One of the firms wanted to see his immigration file,7 however, and the other suggested he would have to “go to court. ” Id. Soriano claimed he felt scared and hopeless, so inst ead of pursuing relief, he “fo cused on [his] wedding” to a woman he had met in September 2011. Id. These circumstances belie diligence in seeking to reopen the immigration proceedings. B. Exceptional Circumstances Because Soriano has not shown he acted with due diligence, the agency was within its discretion to simply deny the motion to reopen as un timely. But it went further, examining whether Poston’s perfo rmance had constituted exceptio nal circumstances that caused Soriano to miss the Sept ember 2011 removal hearing. Bec ause Soriano was present at the May 2011 hearing when notice of t he September he aring was provided, the BIA and IJ concluded that Posto n’s failure to remind Soriano of the removal hearing was not prejudicial. See Tang v. Ashcroft , 354 F.3d 1192, 1196 (10t h Cir. 2003) (observing that an ineffective-assistance cl aim in the immigration context requires deficient performance that denies the alie n a fundamentally fair proceedi ng); United States v. Aguirre-Tello , 353 F.3d 1199, 1207-08 (10th Cir. 2004) (equating prejudice w ith a fundamentally unfair immigration proceeding). Soriano argues that he established exceptional circumstances b ecause he spoke by phone with Poston several weeks before the September 29, 2011 h earing, and he asked Poston to “let [him] know when th e next hearing was going to ta ke place,” but Poston did not notify him until the day o f the hearing. R. at 745. Thus, Soriano suggests, Poston performed deficiently and made h im miss the hearing. For suppo rt, he cites Aris v. Mukasey , where the Second Circuit held t hat “a lawyer’s inaccurate adv ice to his client8 concerning an immigration hear ing date can constitute ‘exceptio nal circumstances’ excusing the alien’s failure to a ppear at a deportation hearing and meriting the reopening of an in absentia deportation order.” 517 F.3d 595, 599 (2d Cir. 2008) (citatio ns omitted). But Aris involved an alien who had been “wrongly informed . . . that th ere was no hearing scheduled.” Id. Here, by contrast, although P oston failed to remind Soriano of the hearing, he did not give Soriano erroneous information. Further, Soriano was present at the May 26, 2011 hea ring when the IJ provided notice of the September 29 removal hearing. Soriano acknowle dged in his brief to the BIA that he “was aware of his hearing date and attended all ot her previous hearing dates prio r to September 29, 2011.” R. at 135. We therefore conclude that the agency acted within its discretion in finding that exceptional circumstances d id not excuse Soriano’s failure to appear at the September 29, 2011 hearing. III. Motion to Reopen Ge nerally (§ 1229a(c)(7)) The same timing and tolling prin ciples discussed above govern Soriano’s motion to reopen under § 1229a(c)(7). See 8 U.S.C. § 1229a(c)(7)(C )(iii) (specifying that motions to reopen a removal orde r entered in abstentia are gove rned by the § 1229a(b)(5)(C) limitations period); Gonzalez-Alarcon v. Macias , 884 F.3d 1266, 1270 (10th Cir. 2018) (stating that § 1 229a motions to reopen in gen eral are subject to equitable tolling). For the reas ons already set forth, Soriano has not shown due diligence in pursuing his case. Thus, the agency did not abuse its discr etion in denying § 1229a(c)(7) relief.9 Even if we joined the agency in assuming that Sor iano had demo nstrated due diligence, we would still conclude that he failed to show that he was prejudiced by Poston’s failure to file an asyl um application o r respond to Ci tizenship and Immigration Services’ request for evidence in support of special immigrant juvenile status. See Mahamat , 430 F.3d at 1283 (sta ting that equitable tolling requires bot h due diligence and a violation of “due process . . . by the conduct of counsel”); Akinwunmi v. INS , 194 F.3d 1340, 1341 n.2 (10th Cir. 1999) (p er curiam) (stating that a du e-process violation occurs when “counsel’s ineff ective assistance so prejudiced [the alien ] that the proceeding was fundamentally unfair”). Indeed, as the agency explained , Soriano offered no evidence h e was even eligible for asylum. Soriano does not arg ue otherwise. Instead, he cla ims he would have obtained special immigrant juven ile status had Poston responded to the evidentiary request. This too is speculativ e. In any event, while Citizen ship and Immigration Services initially denied Sorian o’s special-immigrant-juvenile- status application because Poston failed to respond, Citizensh ip and Immigration Services sua sponte reopened the matter in April 2011, and Soriano’ s application remained pendin g until August 2017— long after Poston’s representa tion had ended. Moreover, Citize nship and Immigration Services denied the application by noting that Soriano had disq ualified himself by marriage in October 2012. See 8 C.F.R. § 204.11(c) (stating th at “[a]n alien is eligible for classification as a special immigrant” juvenile if, among o ther things, he or she “[i]s unmarried”). Thus, becau se nothing shows that Poston’s handlin g of the special-10 immigrant-juvenile-status applic ation prejudiced Soriano, the a gency did not abuse its discretion in declining to reopen the proceedings under 8 U.S.C . § 1229a(c)(7).
IV. Pereira v. Sessions
In Pereira v. Sessions , 138 S. Ct. 2105 (2018), the S upreme Court addressed the effect of a notice to appear on an alien’s eligibility for canc ellation of removal. Specifically, the Court held tha t a notice to appear that omits the removal proceeding’s time or place does not stop the a lien’s accrual of continuous p resence in the United States for purposes of cancellation of removal. Id. at 2113-14. Soriano attempts to expand
Pereira ’s holding into a jurisdictiona l invalidation of any removal pr oceeding initiated by a notice to appear that lacks a time or place designation. He notes that the notice to appear issued to him after he wa s apprehended in 2009 provided only that he was to appear for removal proceedings at a date and time “to be set.” R. at 901.
But “ Pereira was not in any way concerned with the Immigration Court’s jurisdiction.” Karingithi v. Whitaker , 913 F.3d 1158, 1159 (9th Cir. 2019). And after the Supreme Court decided Pereira , the BIA issued a precedential opinion rejecting the same jurisdictional argument that Soriano raises here. In In re Bermudez-Cota , 27 I. & N. Dec. 441, 447 (BIA 2018), the BIA ex plained that “a notice to appear that does not specify the time and place of an alien’s initia l removal hearing vests an I mmigration Judge with jurisdiction over the removal proceedings . . . so long as a no tice of hearing specifying this information is later sent to the alien.” Soriano does not dispute that he received notices of hearing that designate d the dates and times of his r emoval proceedings. So we see no jurisdictional significan ce in the failure to include a date and time in the notice to11 appear. See Karingithi , 913 F.3d at 1161-62; Hernandez-Perez v. Whitaker , 911 F.3d 305, 314-15 (6 th Cir. 2018).
C ONCLUSION 4 We deny Soriano’s petition for review.

Entered for the Court
Gregory A. Phillips Circuit Judge

4 Soriano complains that the BIA “erred in concluding that [he] does not require his removal proceedings t o be reopened to be able to im migrate to the United States through marriage to his U.S. citizen spous e.” Pet’r Ope ning Br. at 8-9. He provides few clarifying details , however, and we do “not consid er issues adverted to in a perfunctory manner, unaccomp anied by some effort at develo ped argumentation.” Armstrong v. Arcanum Grp., Inc. , 897 F.3d 1283, 1291 (10th Cir. 2018) (ellipsis and internal quotation marks omitted).