Hua Qing Mo v. ERIC H. HOLDER, Jr., Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HUA QING MO,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 11-73903
Agency No. A098-453-010
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 17, 2013**
Before: GOODWIN, WALLACE, and GRABER, Circuit Judges.
Hua Qing Mo, a native and citizen of China, 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. We review
FILED
JAN 03 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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for abuse of discretion the BIA’s denial of a motion to reopen. Najmabadi v.
Holder, 597 F.3d 983, 986 (9th Cir. 2010). We deny the petition for review.
The BIA did not abuse its discretion by denying Mo’s untimely motion to
reopen where the motion was filed more than two years after the IJ’s final order,
see 8 C.F.R. § 1003.23(b)(4)(ii), and Mo failed to demonstrate inadequate notice of
the hearing, which was delivered to the address he provided in his asylum
application, see 8 C.F.R. § 1003.23(b)(4)(iii)(A); Singh-Bhathal v. INS, 170 F.3d
943, 946 (9th Cir. 1999) (alien who receives written notice of hearing has 180 days
from date of in-absentia deportation order to file a motion to reopen; untimely
motions are “absolutely barred”). Further, Mo failed to demonstrate due diligence
as required for equitable tolling of the filing deadline. See Avagyan v. Holder, 646
F.3d 672, 679-80 (9th Cir. 2011).
In addition, Mo failed to establish materially changed country conditions in
China warranting reopening. See 8 C.F.R. § 1003.2(c)(3)(ii); see also Toufighi v.
Mukasey, 538 F.3d 988, 996 (9th Cir. 2007) (setting forth the requirements for
demonstrating changed country conditions in support of a motion to reopen);
Najmabadi, 597 F.3d at 991 (self-induced changes in personal circumstances are
not sufficient to demonstrate changed country conditions).
11-73903 2

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We reject Mo’s contention that the entry of an in absentia order violated due
process. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error to
prevail on a due process challenge).
Finally, our review is limited to the administrative record and thus we do not
consider materials referenced in petitioner’s 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).
PETITION FOR REVIEW DENIED.
11-73903 3

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