Lee Kyung-Sae v. Eric Holder, Jr.
Opinion
Opinion
MEMORANDUM
Lee Kyung-Sae, a native and citizen of China, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dis missing his appeal from an immigration judge’s (“IJ”) order 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 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 in part and dismiss in part the petition for review.
The BIA did not abuse its discretion in dismissing Kyung-Sae’s appeal of the IJ’s order denying his motion to reopen as untimely, where he filed the motion more than nine years after his in absentia order of removal became final, see 8 C.F.R. § 1003.23 (b)(1), (4)(ii), and he has not established the due diligence required for equitable tolling of the filing deadline, see Avagyan v. Holder, 646 F.3d 672, 679-80 (9th Cir.2011) (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).