Zhengtao Zheng v. Eric Holder, Jr. ( 2013 )

FILED
NOT FOR PUBLICATION DEC 05 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ZHENGTAO ZHENG, No. 12-72521
Petitioner, Agency No. A075-684-225
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 19, 2013**
Before: CANBY, TROTT, and THOMAS, Circuit Judges.
Zhengtao Zheng, a native and citizen of China, petitions for review of the
Board of Immigration Appeals’ order summarily affirming the decision of an
immigration judge (“IJ”) denying his motion to reopen. We have jurisdiction
under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to
*
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).
reopen. Avagyan v. Holder, 646 F.3d 672, 674 (9th Cir. 2011). We deny the
petition for review.
The IJ did not abuse her discretion by denying as untimely Zheng’s motion
to reopen because Zheng filed his motion to reopen nearly 12 years after his in
absentia order of removal became administratively final, see 8 U.S.C.
§ 1229a(c)(7)(C); 8 C.F.R. § 1003.23(b)(1), (4), and failed to demonstrate
inadequate notice such as would warrant an exception to the filing deadline where
he personally received and signed the notice to appear informing him of the time,
date, and place of his scheduled removal hearing and the consequences of failing to
appear, see Khan v. Ashcroft, 374 F.3d 825, 829 (9th Cir. 2004). Zheng also failed
to demonstrate the due diligence necessary to warrant equitable tolling of the filing
deadline based on ineffective assistance of counsel where he moved to reopen
approximately 12 years after he reasonably should have suspected his attorney’s
fraud. See Avagyan, 646 F.3d at 680.
Zheng’s purported prima facie eligibility for adjustment of status did not
require the IJ to reopen his removal proceedings in the absence of a timely motion
to reopen. See Ekimian v. INS, 303 F.3d 1153, 1156 (9th Cir. 2002) (“[A] motion
to reopen to consider an application for an adjustment of status must be presented
to the [agency] no later than ninety days after the issuance of a final decision by the
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[agency].”). Because Matter of M-S-, 22 I. & N. Dec. 349 (BIA 1998) (en banc),
does not alter this conclusion, the IJ did not err by failing to consider its
applicability to Zheng’s case. See Matter of M-S-, 22 I. & N. Dec. at 357 (holding
that a motion to reopen seeking only to “apply for a form of relief which was
unavailable to [the movant] at the time of [the] hearing . . . is subject to the
regulatory requirements” governing motions to reopen).
PETITION FOR REVIEW DENIED.
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