Jingwu Jin v. Eric Holder, Jr. , 588 F. App'x 605 ( 2014 )

FILED
NOT FOR PUBLICATION DEC 15 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JINGWU JIN, No. 13-71275
Petitioner, Agency No. A088-280-043
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 9, 2014**
Before: WALLACE, LEAVY, and BYBEE, Circuit Judges.
Jingwu Jin, a native and citizen of China, petitions for review of the Board
of Immigration Appeals’ order dismissing his appeal from an immigration judge’s
decision 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
*
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).
denial of a motion to reopen. Avagyan v. Holder, 646 F.3d 672, 674 (9th Cir.
2011). We deny the petition for review.
The agency did not abuse its discretion by denying as untimely Jin’s motion
to reopen where he filed his motion nearly three years after his in absentia order of
removal became administratively final, see 8 U.S.C. § 1229a(b)(5)(C); 8 C.F.R.
§ 1003.23(b)(1), (4), and Jin did not present sufficient evidence to rebut the
presumption of effective delivery, see Popa v. Holder, 571 F.3d 890, 897-98 (9th
Cir. 2009) (“The government satisfies notice requirements ‘by mailing notice of
the hearing to an alien at the address last provided to the [agency].’” (citation
omitted)); Sembiring v. Gonzales, 499 F.3d 981, 988-89 (9th Cir. 2007)
(identifying factors relevant to evaluating a petitioner’s rebuttal of the presumption
of effective delivery). In addition, Jin failed to demonstrate the due diligence
necessary to warrant equitable tolling of the filing deadline. See Avagyan, 646
F.3d at 679.
In light of our disposition, we do not reach Jin’s remaining contentions.
PETITION FOR REVIEW DENIED.
2 13-71275