NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

 FOR THE NINTH CIRCUIT

VIGEN PATATANYAN, AKA Wicken

Patatanian,

Petitioner,

 v.

MATTHEW G. WHITAKER, Acting

Attorney General,

Respondent.

Nos. 16-71621

16-72765

Agency No. A078-662-903

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted December 18, 2018** 

San Francisco, California

Before: CALLAHAN, N.R. SMITH, and MURGUIA, Circuit Judges.

1. The Board of Immigration Appeals (“BIA”) did not abuse its discretion in

denying Patatanyan’s motion to reopen. Patatanyan filed the one allowed motion

FILED

DEC 28 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

* 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).
to reopen under 8 U.S.C. § 1229a(b)(5) in December 2002. See also 8 C.F.R.

§ 1003.23. An immigration judge denied the 2002 motion; the appeal of the

denial was dismissed by the BIA. The regulations, 8 C.F.R. §§ 1003.2, 1003.23,

do not allow a petitioner to file a second motion to reopen in absentia proceedings

based on the same claims.

Patatanyan also failed to establish the necessary due diligence required for

equitable tolling. Patatanyan was aware of the paralegal’s shortcomings when he

filed his first motion to reopen in 2002.1

 See Socop-Gonzalez v. INS, 272 F.3d

1176, 1194–96 (9th Cir. 2001) (en banc). Yet, he failed to provide a sufficient

explanation for why it took him thirteen years after his 2003 removal to file the

second motion.2 Id. 

1

 Patatanyan repeated the same allegations against the paralegal in the

second motion to reopen. These arguments establish that Patatanyan discovered

the paralegal’s misconduct during his prior hearing. See Fajardo v. INS, 300 F.3d

1018, 1022 (9th Cir. 2002). He does not assert any new claims nor does he assert

the lawyer representing him during the first motion to reopen was ineffective. 

2

 In the alternative, the BIA also concluded that Patatanyan failed to comply

with Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), when asserting ineffective

assistance of counsel by his paralegal. Because we conclude that the BIA did not

abuse its discretion in finding Patatanyan did not act with due diligence, we need

not address this alternative conclusion.

2
2. The BIA did not abuse its discretion in denying Patatanyan’s motion for

reconsideration.3 The BIA concluded that Patatanyan failed to establish prima

facie eligibility for relief, because he was ineligible under the persecutor bar for

asylum and withholding of removal. See 8 U.S.C. §§ 1101(a)(42),

1158(b)(2)(A)(i), 1231(b)(3)(B)(i). Patatanyan did not challenge this finding on

appeal; thus, it is waived. Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir.

1996). As a result, Patatanyan has failed to establish prima facie eligibility for

asylum or withholding of removal.4

 See 8 C.F.R. § 1240.8(d).

PETITIONS FOR REVIEW DENIED.

3

 In addressing the motion to reopen, the BIA failed to address Patatanyan’s

claim that materially changed circumstances entitled him to relief. However, any

error was harmless, because the BIA considered the claim on the merits in

reviewing the motion for reconsideration.

4

 In the alternative, the BIA concluded that Patatanyan failed to produce

evidence of materially changed circumstances. Because Patatanyan is ineligible

for asylum and withholding of removal under the persecutor bar, we need not reach

this issue. However, even if we were to reach it, Patatanyan has not established

that the BIA abused its discretion in making this conclusion. See 8 C.F.R.

§ 1003.2(c)(3)(ii). 

3