Jose Murillo-Zapata v. Loretta E. Lynch , 643 F. App'x 657 ( 2016 )

FILED
NOT FOR PUBLICATION MAR 22 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE JAVIER MURILLO-ZAPATA, No. 14-73175
Petitioner, Agency No. A073-001-882
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 15, 2016**
Before: GOODWIN, LEAVY, and CHRISTEN, Circuit Judges.
Jose Javier Murillo-Zapata, a native and citizen of Honduras, 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. We have jurisdiction under 8 U.S.C. § 1252.
*
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).
We review for abuse of 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 or violate due process in denying
Murillo-Zapata’s motion to reopen and rescind his in absentia order of removal,
where notice of the hearing was sent to his counsel of record and to Murillo-
Zapata’s last known mailing address, and the record shows Murillo-Zapata failed
to apprise the immigration court of his new address. See 8 U.S.C.
§ 1229a(b)(5)(C)(ii); Popa v. Holder, 571 F.3d 890, 897-98 (9th Cir. 2009) (the
government satisfies statutory notice requirements and due process by mailing the
notice of hearing to the last address provided by the alien, where the alien failed to
provide a change of address at which he can be contacted); Al Mutarreb v. Holder,
561 F.3d 1023, 1028 n.6 (9th Cir. 2009) (service of the notice of hearing to an
alien’s counsel, and not to the alien himself, may be sufficient). Contrary to
Murillo-Zapata’s contention, there is no statute of limitations within which the
Department of Homeland Security must move to recalendar a case that had been
administratively closed.
The agency did not abuse its discretion in denying Murillo-Zapata’s motion
to reopen based on exceptional circumstances, where he filed it three years after
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the date of his removal order, see 8 C.F.R. § 1003.23(b)(4)(ii) (setting a 180-day
deadline), and failed to establish the due diligence required to warrant equitable
tolling of the deadline, see Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir. 2011)
(equitable tolling of filing deadlines is available to a petitioner who is prevented
from properly filing due to deception, fraud, or error, and who exercises due
diligence in discovering such circumstances).
The agency also did not abuse its discretion in denying as untimely Murillo-
Zapata’s motion to reopen to apply for asylum and related relief, where he fails to
challenge the agency’s determination that he did not establish changed country
conditions, and instead solely contends he was unable to previously present his
case due to lack of notice. See 8 U.S.C. § 1229a(c)(7)(C)(i)-(ii).
Contrary to Murillo-Zapata’s contention, the BIA sufficiently considered his
arguments and articulated its reasons for dismissing his appeal. See Najmabadi v.
Holder, 597 F.3d 983, 990 (9th Cir. 2010) (“What is required is merely that [the
BIA] consider the issues raised, and announce its decision in terms sufficient to
enable a reviewing court to perceive that it has heard and thought and not merely
reacted.” (citation and quotation marks omitted)).
PETITION FOR REVIEW DENIED.
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