                            NOT FOR PUBLICATION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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