DRAYTON BATEPOLA V. ERIC HOLDER, JR., No. 11-71374 (9th Cir. 2015)

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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT FEB 19 2015 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS DRAYTON P V D BATEPOLA, AKA Puwakpitiya Vithanalage Dharmakirthi Drayton Batepola, No. 11-71374 Agency No. A070-637-299 Petitioner, MEMORANDUM* v. ERIC H. HOLDER, Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted February 10, 2015** Pasadena, California Before: KOZINSKI, CHRISTEN, and HURWITZ, Circuit Judges. 1. The BIA did not abuse its discretion in rejecting Batepola’s untimely motion to reopen. The BIA reasonably determined that Batepola was not entitled to equitable tolling because he failed to pursue his claims of ineffective assistance of * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). counsel against his two prior attorneys with due diligence, Iturribarria v. INS, 321 F.3d 889, 897–99 (9th Cir. 2003), and failed to comply with the procedural requirements of Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), see Ontiveros-Lopez v. INS, 213 F.3d 1121, 1123 (9th Cir. 2000). The BIA also reasonably determined that Batepola’s second attorney performed competently and that Batepola did not suffer prejudice as a result of following her advice. 2. The BIA did not abuse its discretion in concluding that Batepola failed to introduce new material evidence to support reopening based on changed country conditions. See INS v. Doherty, 502 U.S. 314, 323 (1992). 3. Batepola’s counsel’s motion to withdraw is granted. PETITION DENIED; MOTION TO WITHDRAW GRANTED. 2

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