Khuwaja

*90 MEMORANDUM ***

Emran Enayat Khuwaja (“Khuwaja”) seeks review of the Board of Immigration Appeals’ (“BIA”) summary affirmance of the Immigration Judge’s (“IJ”) denial of his motion to reopen his removal proceedings. On appeal, Khuwaja contends that the BIA erred in not reopening his case on the basis of ineffective assistance of counsel.

We review the denial of a motion to reopen for abuse of discretion. Rodriguez-Lariz v. INS, 282 F.3d 1218, 1222 (9th Cir.2002). Where the BIA affirms the IJ’s decision without opinion, as is the case here, “the IJ’s decision becomes the BIA’s decision and we evaluate the IJ’s decision as we would that of the Board.” Lanza v. Ashcroft, 389 F.3d 917, 925 (9th Cir.2004) (internal quotation marks omitted).

Although ineffective assistance of counsel may qualify as an exceptional circumstance warranting rescission of an order of removal, see Lo v. Ashcroft, 341 F.3d 934, 936-37 (9th Cir.2003), by regulation, a petitioner has only 180 days to file a motion to reopen an in abstentia order of removal based on exceptional circumstances, 8 C.F.R. § 1003.23 (b)(4)(h). This 180-day deadline may be tolled, however, “during periods when a petitioner is…