FILED
NOT FOR PUBLICATION JUN 21 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JIAN ZHANG, No. 10-70507
Petitioner, Agency No. A099-366-341
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 15, 2011 **
Before: CANBY, O’SCANNLAIN, and FISHER, Circuit Judges.
Jian Zhang, a native and citizen of China, petitions for review of the Board
of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration
judge’s decision denying his motion to reopen removal proceedings conducted in
absentia. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse 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).
discretion the denial of a motion to reopen, and review de novo questions of law,
including claims of due process violations. Hamazaspyan v. Holder, 590 F.3d 744,
747 (9th Cir. 2009). We deny the petition for review.
The agency did not abuse its discretion in denying Zhang’s motion to reopen
where Zhang failed to establish exceptional circumstances beyond his control that
would excuse his failure to appear at his hearing. See 8 U.S.C. § 1229a(e)(1).
The agency did not violate due process by considering due diligence as a
factor in denying Zhang’s motion to reopen where the BIA’s precedent decision in
Matter of J-P-, 22 I. & N. Dec. 33 (BIA 1998) (en banc) put Zhang on notice that
this factor applied. Cf. Singh v. INS, 213 F.3d 1050, 1053 (9th Cir. 2000) (BIA
violates due process by applying a “previously unannounced evidentiary
standard”).
PETITION FOR REVIEW DENIED.
2 10-70507