Zhidong Zhu v. Eric H. Holder Jr. , 388 F. App'x 663 ( 2010 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUL 19 2010
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
ZHIDONG ZHU, No. 08-71535
Petitioner, Agency No. A096-345-836
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 29, 2010 **
Before: ALARCÓN, LEAVY, and GRABER, Circuit Judges.
Zhidong Zhu, a native and citizen of China, petitions for review of the Board
of Immigration Appeals’ (“BIA”) order summarily dismissing his appeal from an
immigration judge’s (“IJ”) decision denying his motion to reopen removal
proceedings conducted in absentia. Our jurisdiction is governed by
*
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).
8 U.S.C. § 1252. Reviewing for abuse of discretion, Perez v. Mukasey, 516 F.3d
770, 773 (9th Cir. 2008), we deny in part and dismiss in part the petition for
review.
The IJ did not abuse his discretion in denying Zhu’s motion to reopen
because written notice of the hearing was mailed to Zhu and to his counsel of
record, and the motion was untimely filed three years after the issuance of the
April 13, 2004, in absentia order. See 8 C.F.R. § 1003.23(b)(4)(ii).
The IJ also did not abuse his discretion in determining the evidence of
religious persecution was insufficient to establish a showing of changed country
conditions in China, see 8 C.F.R. § 1003.23(b)(4)(i), and that evidence of
smugglers’ threats was insufficient to establish prima facie eligibility for asylum,
withholding of removal, and relief under the Convention Against Torture, see
Mendez-Gutierrez v. Gonzales, 444 F.3d 1168, 1171 (9th Cir. 2006) (prima facie
eligibility is established “where the evidence reveals a reasonable likelihood that
the statutory requirements for relief have been satisfied”).
We lack jurisdiction to consider Zhu’s contention that the IJ incorrectly
determined that Zhu was removable as charged because Zhu failed to exhaust this
contention before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.
2004) (generally requiring exhaustion of claims before the BIA).
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We lack jurisdiction to review Zhu’s contention that the IJ should have
invoked his sua sponte authority to reopen his proceedings. See Ekimian v. INS,
303 F.3d 1153, 1159 (9th Cir. 2002).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
3 08-71535