Zhengtao Zheng v. Eric Holder, Jr.

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NOT FOR PUBLICATION DEC 05 2013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

2 12-72521
[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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