Biao Zheng v. Eric Holder, Jr. , 423 F. App'x 699 ( 2011 )

FILED
NOT FOR PUBLICATION MAR 22 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
BIAO ZHENG, No. 09-71899
Petitioner, Agency No. A072-337-305
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, LEAVY, and BYBEE, Circuit Judges.
Biao Zheng, a native and citizen of China, petitions for review of the Board
of Immigration Appeals’ (“BIA”) order denying his motion to reopen. We have
jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of
*
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).
a motion to reopen, He v. Gonzales, 501 F.3d 1128, 1130-31 (9th Cir. 2007), and
we deny in part and dismiss in part the petition for review.
The BIA did not abuse its discretion in denying Zheng’s motion to reopen to
rescind his deportation order because the hearing notice was sent by certified mail
to the address last provided by Zheng and he failed to timely inform the
immigration court of his address change, see Arrieta v. INS, 117 F.3d 429, 431 (9th
Cir. 1997) (per curiam) (hearing notice sent by certified mail to alien’s last known
address is sufficient notice).
The BIA did not abuse its discretion in denying Zheng’s motion to reopen as
untimely because he filed it more than 10 years after the final deportation order,
see 8 C.F.R. § 1003.23(b)(1), and he failed to demonstrate changed country
conditions to qualify for the regulatory exception to the time limit for filing
motions to reopen, or that he warranted equitable tolling of the filing deadline, see
8 C.F.R. § 1003.22(b)(4)(i); He, 501 F.3d at 1132 (changed personal circumstances
insufficient to support an untimely motion to reopen); Iturribarria v. INS, 321 F.3d
889, 897 (9th Cir. 2003) (equitable tolling available “when a petitioner is
prevented from filing because of deception, fraud, or error, as long as the petitioner
acts with due diligence”).
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We lack jurisdiction to review Zheng’s ineffective assistance of counsel
claim because he failed to exhaust it. See Barron v. Ashcroft, 358 F.3d 674, 678
(9th Cir. 2004).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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