                                                                            FILED
                            NOT FOR PUBLICATION
                                                                            DEC 17 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


MARINA V. BUTENKO,                               No.   16-72299

              Petitioner,                        Agency No. A076-865-734

 v.
                                                 MEMORANDUM*
MATTHEW G. WHITAKER, Acting
Attorney General,

              Respondent.


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

                     Argued and Submitted December 7, 2018
                              Seattle, Washington

Before: THOMAS, Chief Judge, and McKEOWN and CHRISTEN, Circuit
Judges.

      Petitioner Marina Butenko, a citizen of Kyrgyzstan, petitions for review of

the Board of Immigration Appeals’ (“BIA”) decision affirming an immigration

judge’s denial of her motion to reopen her removal proceedings. We have

jurisdiction pursuant to 8 U.S.C. § 1252(b)(2), and we deny the petition for review.


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      Because the parties are familiar with the facts and the procedural history, we

need not recount it here. We review the BIA’s determination that Butenko

received sufficient notice de novo. Singh v. Gonzalez, 491 F.3d 1090, 1095 (9th

Cir. 2007). We review the BIA’s decision to deny Butenko’s motion to reopen

based on exceptional circumstances for abuse of discretion. Singh v. INS, 295 F.3d

1037, 1039 (9th Cir. 2002) (internal citation omitted). We may grant a petition for

review of the BIA’s denial if it was “arbitrary, irrational, or contrary to law.” Id.

(internal citation omitted). We review the BIA’s decision to deny Butenko’s

motion to reopen based on changed country conditions for abuse of discretion.

Chandra v. Holder, 751 F.3d 1034, 1036 (9th Cir. 2014).

                                            I

      The BIA did not err in concluding that an order granting the motion to

reopen was not warranted due to a lack of notice for the prior in absentia removal

proceeding. Due process is satisfied if notice was “reasonably calculated” to reach

Butenko. Garcia v. INS, 222 F.3d 1208, 1209 (9th Cir. 2000) (per curiam). Actual

notice is not required. Farhoud v. INS, 122 F.3d 794, 796 (9th Cir. 1997), as

amended (Oct. 6, 1997). The Immigration and Nationality Act provides for service

by mail to the alien’s counsel of record. 8 U.S.C. § 1229(a)(2)(A). “It is a

longstanding principle that in ‘our system of representative litigation . . . each party


                                           2
is deemed bound by the acts of his lawyer-agent and is considered to have notice of

all facts, notice of which can be charged upon the attorney.’” Garcia, 222 F.3d at

1209 (quoting Link v. Wabash R.R., 370 U.S. 626, 634 (1962)).

      Service to Butenko’s attorney satisfied due process. Butenko’s declaration

indicates that she traveled to the Ukraine in June of 2010, and that the abuse that

prevented her from returning did not manifest until she began to prepare for her

family’s return trip at the conclusion of their eighteen-day planned stay. Butenko

did not inform her attorney of her travel plans, her declaration does not indicate

that she was prohibited from contacting her attorney before or after the abuse

began, and Butenko last made contact with her attorney at a master calendar

hearing on March 16, 2010, nearly two months before her departure. Under these

circumstances, service to Butenko’s attorney not only complied with the statute,

but was “reasonably calculated” to reach Butenko based on the information

available to the immigration judge at the time.

                                          II

      The BIA did not abuse its discretion in concluding that granting the motion

to reopen was not warranted due to exceptional circumstances. A motion to reopen

based on exceptional circumstances must be “filed within 180 days after the date of

the order of removal.” 8 C.F.R. § 1003.23(b)(4)(ii). Equitable tolling of the 180-


                                          3
day deadline is available to a petitioner removed in absentia where the petitioner

demonstrates that “despite all due diligence,” and because of circumstances beyond

the petitioner’s control, the petitioner was “unable to obtain vital information

bearing on the existence of the claim.” Singh v. Gonzales, 491 F.3d at 1096

(internal citation omitted).

      In this case, viewing the tolling claim in the light most favorable to the

petitioner, Butenko returned to the United States approximately thirteen months

before she filed her motion to reopen. On appeal to the BIA, Butenko explained

that she required “several months to settle in and sort out the work and living

accommodations for herself and her minor children, and to start recovering from

the battery and extreme cruelty she had been subjected to[.]” For purposes of this

motion, we credit Burenko’s description of her abusive situation. Under these

circumstances, however, the BIA did not abuse its discretion in concluding that she

did not demonstrate due diligence, nor demonstrate that circumstances beyond her

control affected her ability to file the motion timely after her return to United

States. Thus, her motion was time-barred and not saved by the application of

equitable tolling.




                                           4
                                          III

      The BIA did not abuse its discretion in concluding that reopening was not

warranted based on changed country conditions, given that Butenko’s proffered

evidence did not demonstrate that the country conditions were “qualitatively

different” from previously-presented evidence. Najmabadi v. Holder, 597 F.3d

983, 987 (9th Cir. 2010) (quoting Malty v. Ashcroft, 381 F.3d 942, 945 (9th Cir.

2004)).

      Butenko also claims that the country conditions have changed as to inter-

ethnic violence. However, that claim was not exhausted before the agency. Failure

to raise an issue to the BIA deprives us of jurisdiction to consider the issue.

Alvarado v. Holder, 759 F.3d 1121, 1127 n.5 (9th Cir. 2014).



      PETITION FOR REVIEW DENIED.




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