FILED
NOT FOR PUBLICATION SEP 28 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HAIQING ZHU, No. 08-70865
Petitioner, Agency No. A099-040-124
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 21, 2015**
Before: REINHARDT, LEAVY, and BERZON, Circuit Judges.
Haiqing Zhu, native and citizen of China, petitions for review of the Board
of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration
judge’s decision denying his motion to reopen removal proceedings conducted in
absentia. Our jurisdiction is governed by 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. Mohammed v. Gonzales, 400 F.3d 785,
791-92 (9th Cir. 2005). We deny in part and dismiss in part the petition for review.
The agency did not abuse its discretion in denying as untimely Zhu’s motion
to reopen, where it was filed approximately ten months after issuance of his order
of removal in absentia, and Zhu failed to establish any statutory or regulatory basis
to excuse the untimeliness of his motion. See 8 C.F.R. § 1003.23(b)(4)(ii); 8
U.S.C. § 1229a(b)(5)(C). Nor did the agency abuse its discretion by declining to
equitably toll the 180-day filing deadline. Iturribarria v. INS, 321 F.3d 889, 898
(9th Cir. 2003) (equitable tolling may be warranted when ineffective assistance of
counsel causes late filing of a motion to reopen).
To the extent Zhu seeks to raise additional grounds for establishing
exceptional circumstances, we lack jurisdiction to consider these unexhausted
contentions. See Tijani v. Holder, 628 F.3d 1071, 1080 (9th Cir. 2010) (“We lack
jurisdiction to review legal claims not presented in an alien’s administrative
proceedings before the BIA.”). We likewise lack jurisdiction to consider Zhu’s
unexhausted due process claim regarding his first hearing, and – to the extent he
requests it – sua sponte reopening of his case. Id.
We deny Zhu’s motion to take judicial notice of documents, and do not
consider the unexhausted contentions regarding ineffective assistance raised in the
2 08-70865
motion. See id.; Fisher v. INS, 79 F.3d 955, 963 (9th Cir. 1996) (en banc) (the
court’s review is limited to the administrative record).
In light of this disposition, we need not reach Zhu’s remaining contentions.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
3 08-70865