Qingxian Xie v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 19, 2019
• Docket: 18-70498
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 19 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

QINGXIAN XIE; CESAR FERNANDO No. 18-70498 XIE LU, AKA Cesar Fernando Chi Lu, Agency Nos. A206-214-389 Petitioners, A206-214-390

v. MEMORANDUM* WILLIAM P. BARR, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted November 4, 2019** Portland, Oregon

Before: PAEZ and RAWLINSON, Circuit Judges, and KOBAYASHI,*** District Judge.

Qingxian Xie, a native and citizen of China, and Cesar Fernando Xie Lu, a

native and citizen of Honduras, petition for review of the Board of Immigration

* 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). *** The Honorable Leslie E. Kobayashi, United States District Judge for the District of Hawaii, sitting by designation. Appeals’ (“BIA”) January 23, 2018 decision denying their motion to reopen

removal proceedings and the BIA’s July 29, 2016 decision affirming the

Immigration Judge’s final order of removal.

We review jurisdictional questions de novo. Abdisalan v. Holder, 774 F.3d

517, 521 (9th Cir. 2014) (en banc), as amended (Jan. 6, 2015). “We review denials

of motions to reopen for abuse of discretion, and defer to the BIA’s exercise of

discretion unless it acted arbitrarily, irrationally, or contrary to law.” Najmabadi v.

Holder, 597 F.3d 983, 986 (9th Cir. 2010) (citations omitted). We dismiss the

petition for review in part, and deny the petition in part.

Although petitioners’ appeal of the BIA’s January 23, 2018 decision denying

their motion to reopen is timely, we lack jurisdiction to address the issues raised in

the petition related to the BIA’s July 29, 2016 decision affirming the Immigration

Judge’s final order of removal. Petitioners failed to file a petition for review of the

BIA’s July 29, 2016 decision within the mandatory 30 days after the issuance of

the order, see 8 U.S.C. § 1252(b)(1) (providing that a “petition for review must be

filed not later than 30 days after the date of the final order of removal”), and

neither exception to this rule applies, see Singh v. INS, 315 F.3d 1186, 1188 (9th

Cir. 2003) (stating that otherwise untimely petitions may be reviewed if there has

been official misleading or if the BIA failed to mail its decision to the petitioner).

2 We therefore dismiss the petition for review to the extent it challenges the July 29,

2016 decision.

The BIA did not abuse its discretion in denying petitioners’ motion to

reopen as untimely where petitioners filed the motion more than a year after the

BIA’s final order of removal, see 8 C.F.R. § 1003.2(c)(2) (providing that the

motion to reopen must be filed within 90 days of the final order of removal), and

failed to submit new and material evidence of changed country conditions in China

that would excuse the late filing, see 8 C.F.R. § 1003.2(c)(3)(ii); He v. Gonzales,

501 F.3d 1128, 1132 (9th Cir. 2007) (holding that birth of children in the United

States is a change in personal circumstances that “alone is insufficient” to

“establish changed circumstances in the country of origin”).

The BIA did not abuse its discretion in denying petitioners’ motion to

reopen as untimely based on ineffective assistance of counsel because the motion

was filed more than a year after the BIA’s final order of removal, see 8 C.F.R.

§ 1003.2(c)(2), and petitioners failed to demonstrate that they acted with the due

diligence required for equitable tolling, see Avagyan v. Holder, 646 F.3d 672, 679

(9th Cir. 2011) (recognizing that equitable tolling is available to a petitioner who is

prevented from timely filing a motion to reopen due to deception, fraud, or error,

provided the petitioner exercises due diligence in discovering such circumstances).

3 Finally, because we determine that the BIA did not abuse its discretion in

denying petitioners’ motion to reopen as untimely, we need not determine whether

the BIA abused its discretion in denying petitioners’ motion to reopen based on its

determination that petitioners failed to establish prima facie eligibility for asylum,

withholding of removal, or relief under the Convention Against Torture. See

Toufighi v. Mukasey, 538 F.3d 988, 993 (9th Cir. 2008) (declining to address

whether the petitioner was ineligible to apply for an adjustment of status, pursuant

to 8 U.S.C. § 1229c(d)(1)(B), after determining that the BIA properly determined

that the motion to reopen was untimely).

PETITION FOR REVIEW DISMISSED IN PART AND DENIED IN

PART.