Xiang Xie v. Eric Holder, Jr.

MEMORANDUM

Xiang Gui Xie, a native and citizen of China, petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s order denying his motion to reopen and rescind his in absentia removal order. 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 the petition for review.

The agency did not abuse its discretion in denying Xie’s motion to reopen on the basis of lack of notice of his hearing, where notice of his hearing was sent to his address of record, his attorney of record had actual notice of the hearing and Xie was personally served a notice to appear including all proper advisals. See 8 C.F.R. § 1003.23 (b)(4)(ii) (a motion to reopen to rescind an in absentia removal order may be “filed at any time if the alien demonstrates that he or she did not receive notice” of the hearing); 8 C.F.R. § 1292.5 (a) (permitting service upon an alien’s counsel of record); 8 U.S.C. § 1229 (c) (“[sjervice by mail under this section shall be sufficient if there is proof of…