Xinhui Wang v. Eric H. Holder Jr.

MEMORANDUM

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 (I J) denial of her motion to reopen her 2002 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. Granados-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 Pursuant to 8 C.F.R. § 1003.23 (b)(4)(ii), an order entered in ab-sentia in removal proceedings may be rescinded upon a motion to reopen filed within 180 days of the final removal order and showing “exceptional circumstances” for the alien’s failure to appear.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…