Meixia Feng v. JEFFERSON B. SESSIONS III, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MEIXIA FENG,
Petitioner,
v.
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
No. 14-71896
Agency No. A075-646-941
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 15, 2017**
Before: CANBY, TROTT, and GRABER, Circuit Judges.
Meixia Feng, a native and citizen of China, petitions for review of the Board
of Immigration Appeals’ (“BIA”) order dismissing her appeal from an immigration
judge’s (“IJ”) order denying her motion to reopen removal proceedings conducted
in absentia. We have jurisdiction under 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 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).
FILED
NOV 20 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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discretion the denial of a motion to reopen. Avagyan v. Holder, 646 F.3d 672, 674
(9th Cir. 2010). We deny the petition for review.
The agency did not abuse its discretion in denying Feng’s motion to reopen
as untimely, where it was filed almost 13 years after her final order of removal, see
8 C.F.R. § 1003.23(b)(4), and Feng failed to establish the due diligence required
for equitable tolling of the filing deadline, see Avagyan, 646 F.3d at 679 (equitable
tolling is available to an alien who is prevented from timely filing a motion to
reopen due to deception, fraud, or error, as long as petitioner exercises due
diligence in discovering such circumstances). Despite the BIA’s determination
that assertions in Feng’s declaration were inherently unbelievable, both the IJ and
the BIA treated as true her statements regarding diligence. Thus, we do not reach
Feng’s contention that the determination was improper.
PETITION FOR REVIEW DENIED.

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