Jian Wang v. Eric Holder, Jr.

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NOT FOR PUBLICATION JUN 26 2014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).

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 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