FILED
NOT FOR PUBLICATION JUN 26 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JIAN FANG WANG, No. 12-73268
Petitioner, Agency No. A076-279-132
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 25, 2014**
Before: HAWKINS, TALLMAN, and NGUYEN, Circuit Judges.
Jian Fang Wang, a native and citizen of China, petitions for review of the
Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen
removal proceedings conducted in absentia. We have jurisdiction under 8 U.S.C.
§ 1252. We review for abuse of discretion the BIA’s denial of a motion to reopen.
*
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).
Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010). We deny the petition for
review.
The agency did not abuse its discretion by denying Wang’s third motion to
reopen as untimely and number-barred because the motion was filed almost
thirteen years after the final order, and Wang admitted he had notice of the hearing.
See 8 C.F.R. § 1003.23(b)(4)(iii)(A); Singh-Bhathal v. INS, 170 F.3d 943, 946 (9th
Cir. 1999) (alien who receives notice of hearing has 180 days from date of in
absentia deportation order to file a motion to reopen).
The BIA also did not abuse its discretion in determining that Wang failed to
demonstrate due diligence as required for equitable tolling of the filing deadline
based on ineffective assistance of counsel. See Avagyan v. Holder, 646 F.3d 672,
679-80 (9th Cir. 2011). We reject Wang’s contention that he was denied the right
to a hearing. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error
and prejudice to prevail on a due process challenge).
In addition, the BIA did not abuse its discretion in finding Wang failed to
qualify for the regulatory exception to the time and numerical limits for filing
motions to reopen. See 8 C.F.R. § 1003.2(c)(3)(ii); Toufighi v. Mukasey, 538 F.3d
988, 996-997 (9th Cir. 2008) (requiring movant to establish prima facie eligibility
for relief).
2 12-73268
Finally, we reject Wang’s contention that the BIA did not adequately
examine his evidence or consider his explanations regarding due diligence. See
Fernandez v. Gonzales, 439 F.3d 592, 603 (9th Cir. 2006) (petitioner did not
overcome the presumption that the BIA reviewed the record).
PETITION FOR REVIEW DENIED.
3 12-73268