NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

QINGXIAN XIE; CESAR FERNANDO 

XIE LU, AKA Cesar Fernando Chi Lu, 

Petitioners, 

 v. 

WILLIAM P. BARR, Attorney General, 

Respondent.

No. 18-70498 

Agency Nos. A206-214-389 

A206-214-390 

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted November 4, 2019**

Portland, Oregon

Before: PAEZ and RAWLINSON, Circuit Judges, and KOBAYASHI,*** District 

Judge.

Qingxian Xie, a native and citizen of China, and Cesar Fernando Xie Lu, a 

native and citizen of Honduras, petition for review of the Board of Immigration 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

*** The Honorable Leslie E. Kobayashi, United States District Judge for 

the District of Hawaii, sitting by designation.

FILED

DEC 19 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

Appeals’ (“BIA”) January 23, 2018 decision denying their motion to reopen 

removal proceedings and the BIA’s July 29, 2016 decision affirming the 

Immigration Judge’s final order of removal.

We review jurisdictional questions de novo. Abdisalan v. Holder, 774 F.3d 

517, 521 (9th Cir. 2014) (en banc), as amended (Jan. 6, 2015). “We review denials 

of motions to reopen for abuse of discretion, and defer to the BIA’s exercise of 

discretion unless it acted arbitrarily, irrationally, or contrary to law.” Najmabadi v. 

Holder, 597 F.3d 983, 986 (9th Cir. 2010) (citations omitted). We dismiss the 

petition for review in part, and deny the petition in part.

Although petitioners’ appeal of the BIA’s January 23, 2018 decision denying 

their motion to reopen is timely, we lack jurisdiction to address the issues raised in 

the petition related to the BIA’s July 29, 2016 decision affirming the Immigration 

Judge’s final order of removal. Petitioners failed to file a petition for review of the 

BIA’s July 29, 2016 decision within the mandatory 30 days after the issuance of 

the order, see 8 U.S.C. § 1252(b)(1) (providing that a “petition for review must be 

filed not later than 30 days after the date of the final order of removal”), and 

neither exception to this rule applies, see Singh v. INS, 315 F.3d 1186, 1188 (9th 

Cir. 2003) (stating that otherwise untimely petitions may be reviewed if there has 

been official misleading or if the BIA failed to mail its decision to the petitioner). 
3 

We therefore dismiss the petition for review to the extent it challenges the July 29, 

2016 decision.

The BIA did not abuse its discretion in denying petitioners’ motion to 

reopen as untimely where petitioners filed the motion more than a year after the 

BIA’s final order of removal, see 8 C.F.R. § 1003.2(c)(2) (providing that the 

motion to reopen must be filed within 90 days of the final order of removal), and 

failed to submit new and material evidence of changed country conditions in China 

that would excuse the late filing, see 8 C.F.R. § 1003.2(c)(3)(ii); He v. Gonzales, 

501 F.3d 1128, 1132 (9th Cir. 2007) (holding that birth of children in the United 

States is a change in personal circumstances that “alone is insufficient” to 

“establish changed circumstances in the country of origin”).

The BIA did not abuse its discretion in denying petitioners’ motion to 

reopen as untimely based on ineffective assistance of counsel because the motion 

was filed more than a year after the BIA’s final order of removal, see 8 C.F.R. 

§ 1003.2(c)(2), and petitioners failed to demonstrate that they acted with the due 

diligence required for equitable tolling, see Avagyan v. Holder, 646 F.3d 672, 679 

(9th Cir. 2011) (recognizing that equitable tolling is available to a petitioner who is 

prevented from timely filing a motion to reopen due to deception, fraud, or error, 

provided the petitioner exercises due diligence in discovering such circumstances).
4 

Finally, because we determine that the BIA did not abuse its discretion in 

denying petitioners’ motion to reopen as untimely, we need not determine whether 

the BIA abused its discretion in denying petitioners’ motion to reopen based on its 

determination that petitioners failed to establish prima facie eligibility for asylum, 

withholding of removal, or relief under the Convention Against Torture. See

Toufighi v. Mukasey, 538 F.3d 988, 993 (9th Cir. 2008) (declining to address 

whether the petitioner was ineligible to apply for an adjustment of status, pursuant 

to 8 U.S.C. § 1229c(d)(1)(B), after determining that the BIA properly determined 

that the motion to reopen was untimely).

PETITION FOR REVIEW DISMISSED IN PART AND DENIED IN 

PART.