NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT FEB 23 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
MARCO ANTONIO GALDINO, No. 08-74013
Petitioner, Agency No. A097-375-403
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 18, 2011**
Pasadena, California
Before: ALARCÓN, RYMER, and BYBEE, Circuit Judges.
Marco Antonio Galdino, a native and citizen of Brazil, petitions for review
of the Board of Immigration Appeals (“BIA”) order denying his motion to reopen
his removal proceedings to permit him to reapply for asylum, withholding of
removal, and relief under the Convention Against Torture. We affirm the BIA’s
*
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).
denial of Galdino’s motion to reopen because the BIA’s denial was not arbitrary,
irrational, or contrary to law. Singh v. INS, 295 F.3d 1037, 1039 (9th Cir. 2002).
A motion to reopen must be filed “within 90 days of the date of entry of a
final administrative order of removal.” 8 U.S.C. §§ 1229a(c)(7)(A), (C)(i). An
exception to the 90-day deadline for filing motions to reopen exists for cases
involving a change in country circumstances. 8 U.S.C. § 1229a(c)(7)(C)(ii); 8
C.F.R. § 1003.2(c)(3)(ii). The law of this circuit requires that a successive and
untimely asylum application must satisfy the requirements for a motion to reopen
and the stringent change in country circumstances exception. Chen v. Mukasey,
524 F.3d 1028, 1033-34 (9th Cir. 2008); accord Lin v. Holder, 588 F.3d 981, 985,
989 (9th Cir. 2009).
Galdino’s motion was not filed within 90 days of the date of the BIA’s
affirmance of the IJ’s order denying relief and ordering Galdino removed. The
BIA did not err in ruling that Galdino’s motion to reopen was untimely, nor did it
err in concluding that the evidence in support of Galdino’s motion failed to present
persuasive evidence showing a change in country circumstances sufficient to
warrant reopening beyond the statutory 90-day limitations period for motions to
reopen. Although the evidence before the BIA was sufficient to show that
homosexuals and transvestites are subjected to abuse and even murder in Brazil, it
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did not indicate that those conditions arose or materially worsened after the
conclusion of Galdino’s removal proceedings. Galdino has also not demonstrated
that he is entitled to equitable tolling of the 90-day limitations period because he
has failed to present any evidence that he was prevented from filing due to
deception, fraud, or error. See Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir.
2003).
Accordingly, the petition for review of the BIA’s denial of Galdino’s motion
to reopen is DENIED.
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