FILED
NOT FOR PUBLICATION MAR 21 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
BAO RONG XU, No. 08-70868
Petitioner, Agency No. A077-153-315
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 8, 2011 **
Before: FARRIS, O’SCANNLAIN, and BYBEE, Circuit Judges.
Bao Rong Xu, a native and citizen of China, petitions pro se for review of
the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen
removal proceedings. We have jurisdiction under 8 U.S.C. § 1252. We review for
abuse of discretion the denial of a motion to reopen, and de novo due process
*
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).
claims. Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir. 2003). We deny the
petition for review.
The BIA did not abuse its discretion in denying Xu’s motion to reopen as
untimely because the motion was filed more than 90 days after the issuance of the
BIA’s final order, see 8 C.F.R. § 1003.2(c)(2), and Xu failed to establish either
changed circumstances in China, see He v. Gonzales, 501 F.3d 1128, 1131-32 (9th
Cir. 2007) (change in personal circumstances does not establish changed
circumstances in the country of origin excusing untimely motion to reopen), or that
he acted with the due diligence required to warrant equitable tolling of the time
limitation, see Iturribarria, 321 F.3d at 897 (equitable tolling is available to a
petitioner who is prevented from filing due to deception, fraud, or error, and
exercises due diligence in discovering such circumstances).
In light of our disposition, we do not reach Xu’s contention that his former
attorney’s performance caused him prejudice.
PETITION FOR REVIEW DENIED.
2 08-70868