Huan Sheng Luo v. Gonzales

135 F. App'x 941

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 22, 2005
• Docket: No. 04-71490
• Status: Published

Opinion

MEMORANDUM

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Huan Sheng Luo, a native and citizen of China, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen deportation proceedings. We have jurisdiction under former 8 U.S.C. § 1105a(a). Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997). We review the denial of a motion to reopen for abuse of discretion, Singh v. INS, 213 F.3d 1050, 1052 (9th Cir.2000), and we deny the petition for review.

The BIA did not abuse its discretion in denying Luo’s motion to reopen as untimely because the record shows, and Luo does not dispute, that the motion was filed on January 20, 2004, more than 90 days after the February 7, 2000 final order of deportation, see 8 C.F.R. § 1003.2(c)(2), and Luo has failed to exhaust with the BIA his argument that the time for filing should be tolled due to ineffective assistance of counsel, see Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir.2004), or his argument that circumstances in China have changed, see 8 C.F.R. § 1003.2(c)(3)(h) (formerly 8 C.F.R. § 3.2(c)(3)(h)). The BIA properly mailed its decision to Luo’s last known address of record, see Singh v. INS, 315 F.3d 1186, 1189 (9th Cir.2003), and it was Luo’s responsibility to update the immigration court of any change of address, see Farhoud v. INS, 122 F.3d 794, 796 (9th Cir.1997).

Luo’s contention that the BIA was required to address his equitable tolling argument is unavailing as Luo did not adequately present the argument to the BIA. See Barron, 358 F.3d at 677-78.

PETITION FOR REVIEW DENIED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.