                                                                             FILED
                            NOT FOR PUBLICATION                               JAN 22 2013

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


XINHUI WANG                                     No. 08-71194

              Petitioner,                       Agency No. A75-711-417

  v.

ERIC H. HOLDER, JR., U.S. Attorney              MEMORANDUM*
General,

              Respondent.


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

                      Argued and Submitted January 11, 2013
                               Pasadena, California

Before: McKEOWN and M. SMITH, Circuit Judges, and BELL,** District Judge.

       Petitioner Xinhui Wang, a native of the People’s Republic of China,

petitions for review of a decision by the Board of Immigration Appeals (BIA)

affirming the Immigration Judge’s (IJ) denial of her motion to reopen her 2002



       *
       This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36–3.
       **
       The Honorable Robert Holmes Bell, United States District Judge for the
Western District of Michigan, sitting by designation.
application for asylum on the alternative grounds of ineffective assistance of

counsel and changed country conditions. We have jurisdiction pursuant to 8

U.S.C. § 1252(a)(1), and we deny the petition.

      We review the Board’s denial of a motion to reopen deportation proceedings

for abuse of discretion. Grandos-Oseguera v. Mukasey, 546 F.3d 1011, 1014 (9th

Cir. 2008). Pursuant to 8 C.F.R. § 1003.23(b)(4)(ii), an order entered in absentia in

removal proceedings may be rescinded upon a motion to reopen filed within 180

days of the final removal order and showing “exceptional circumstances” for the

alien’s failure to appear.

      Petitioner alleged the exceptional circumstance of ineffective assistance of

counsel. However, Petitioner filed her motion to reopen more than five years after

the final removal order. Even if we accepted Petitioner’s argument that equitable

tolling applies due to the fraudulent conduct of her immigration consultant, the

limitations period is tolled only until a petitioner learns of the fraud, at which

point, the limitations period begins to run again. See Iturribarria v. INS, 321 F.3d

889, 899 (9th Cir. 2003). At the latest, Petitioner learned of her immigration

consultant’s fraud on May 2, 2006. Petitioner’s motion was not filed until March

9, 2007, well after the 180-day period expired. Thus, we conclude that the BIA did

not abuse its discretion in dismissing the motion to reopen on the ineffective


                                           2
assistance of counsel ground as untimely.

      Alternatively, Petitioner alleges changed country conditions in regard to

China’s family planning policies. “There is no time limit on the filing of a motion

to reopen if the basis of the motion is to apply for relief under sections 1158 or

1231(b)(3) of this title and is based on changed country conditions arising in the

country of nationality or the country to which removal has been ordered.” 8 U.S.C.

§ 1229a(c)(7)(C)(ii). We review findings of fact concerning changed country

conditions for substantial evidence. Mutuku v. Holder, 600 F.3d 1210, 1213 (9th

Cir. 2010). We conclude that substantial evidence supports the BIA’s

determination that Petitioner failed to establish changed country conditions.

PETITION DENIED.




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