Xiang Xie v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION APR 14 2015

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

XIANG GUI XIE, No. 13-71869

Petitioner, Agency No. A076-279-971

v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,

Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Submitted April 7, 2015**

Before: FISHER, TALLMAN, and NGUYEN, Circuit Judges.

Xiang Gui Xie, a native and citizen of China, petitions for review of the

Board of Immigration Appeals’ order dismissing his appeal from an immigration

judge’s order denying his motion to reopen and rescind his in absentia removal

order. 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 constitutional

claims. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We deny

the petition for review.

The agency did not abuse its discretion in denying Xie’s motion to reopen on

the basis of lack of notice of his hearing, where notice of his hearing was sent to

his address of record, his attorney of record had actual notice of the hearing and

Xie was personally served a notice to appear including all proper advisals. See 8

C.F.R. § 1003.23(b)(4)(ii) (a motion to reopen to rescind an in absentia removal

order may be “filed at any time if the alien demonstrates that he or she did not

receive notice” of the hearing); 8 C.F.R. § 1292.5(a) (permitting service upon an

alien’s counsel of record); 8 U.S.C. § 1229(c) (“[s]ervice by mail under this section

shall be sufficient if there is proof of attempted delivery to the last address

provided by the alien” and the alien was served a notice to appear with the required

advisals concerning the alien’s obligation to inform the agency of his address and

the consequences of failing to do so).

Nor did the agency violate Xie’s due process rights, as notice of his hearing

was reasonably calculated to reach him. Popa v. Holder, 571 F.3d 890, 897 (9th

Cir. 2009) (“Due process is satisfied if service is conducted in a manner

‘reasonably calculated’ to ensure that notice reaches the alien,” even if the alien

2 13-71869
does not actually receive the notice. (internal citation and quotation marks

omitted)).

The agency did not abuse its discretion in denying as untimely Xie’s motion

to reopen on the basis of ineffective assistance of counsel, where Xie filed his

motion more than 12 years after his order of removal became final, 8 C.F.R.

§ 1003.23(b)(4)(ii) (a motion to reopen to rescind an in absentia removal order

based on exceptional circumstances must be filed within 180 days of a final order

of removal), and he failed to establish the due diligence required for equitable

tolling of the filing deadline, see Avagyan v. Holder, 646 F.3d 672, 679-80 (9th

Cir. 2011) (equitable tolling is available to an alien who is prevented from timely

filing a motion to reopen due to deception, fraud or error, as long as the alien

exercises due diligence in discovering such circumstances).

In light of this disposition, we do not reach Xie’s remaining contentions.

PETITION FOR REVIEW DENIED.

3 13-71869