Don Susil Wijesinghe v. Loretta E. Lynch

MEMORANDUM

Petitioner Don Susil P. Wijesinghe petitions for review of a Board of Immigration Appeals’ (“BIA”) order denying his third motion to reopen as time-and number-barred. Having reviewed the BIA’s denial of the motion for abuse of discretion, see Meza-Vallejos v. Holder, 669 F.3d 920, 923 (9th Cir.2012), we deny the petition for review.

Wijesinghe argues that the BIA abused its discretion by denying his motion as time- and number-barred. He claims he was entitled to equitable tolling on account of ineffective assistance of his prior counsel. The BIA concluded Wijesinghe was not entitled to equitable tolling because he could not show prejudice from his former attorneys’ ineffective assistance.

Even assuming that Wijesinghe is entitled to some equitable tolling, Wijesinghe’s third motion to reopen remains untimely. Equitable tolling of the 90-day deadline for filing motions to reopen continues until the date counsel’s error is discovered, or with due diligence, should have been discovered. Iturribarria v. INS, 321 F.3d 889, 897-99 (9th Cir.2003). Because the terrorist bar is what prevents Wijesinghe’s eligibility for relief, the relevant error here is the failure to…