                                                                           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                             NOT FOR PUBLICATION                            MAR 21 2011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.




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