Zaiyu Zhang v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 25 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ZAIYU ZHANG, No. 20-70795
Petitioner, Agency No. A088-291-609
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 17, 2021**
Before: SILVERMAN, CHRISTEN, and LEE, Circuit Judges.
Zaiyu Zhang, a native and citizen of China, petitions for review of the Board
of Immigration Appeals’ (“BIA”) order denying his motion to reopen removal
proceedings. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of
discretion the BIA’s denial of a motion to reopen. Najmabadi v. Holder, 597 F.3d
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
983, 986 (9th Cir. 2010). We deny the petition for review.
The BIA did not abuse its discretion in denying Zhang’s untimely motion to
reopen based on ineffective assistance of counsel where he failed to demonstrate
he acted with the due diligence required for equitable tolling. See 8 U.S.C.
§ 1229a(c)(7)(C)(i); Singh v. Holder, 658 F.3d 879, 884 (9th Cir. 2011) (“To
qualify for equitable tolling on account of ineffective assistance of counsel, a
petitioner must demonstrate . . . due diligence in discovering counsel’s fraud or
error . . . .”); Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir. 2011) (listing factors
relevant to the due diligence inquiry).
We do not consider newly raised assertions of fact in the opening brief that
were not part of the record before the agency. See Fisher v. INS, 79 F.3d 955, 963-
64 (9th Cir. 1996) (en banc).
The temporary stay of removal remains in place until issuance of the
mandate.
PETITION FOR REVIEW DENIED.
2 20-70795