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NOT FOR PUBLICATION APR 14 2015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
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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.
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