Meiling Zhang v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 6, 2024
• Docket: 20-70534
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 6 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MEILING ZHANG, No. 20-70534

Petitioner, Agency No. A201-212-337

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted November 4, 2024** San Francisco, California

Before: GOULD, SUNG, and DE ALBA, Circuit Judges.

Meiling Zhang is a native and citizen of China. Zhang petitions for review

of the Board of Immigration Appeals’ (“BIA”) dismissal of her appeal of an

immigration judge’s (“IJ”) denial of her motion to reopen her in absentia removal

order. We have jurisdiction under 8 U.S.C. § 1252. We review the BIA’s

* 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). dismissal of an appeal of an IJ’s denial of a motion to reopen for abuse of

discretion. See Hernandez-Galand v. Garland, 996 F.3d 1030, 1034 (9th Cir.

2021). We deny the petition for review.

1. Zhang was admitted to the United States on or about February 3, 2011

as a nonimmigrant visitor with authorization to stay until August 2, 2011. On

December 15, 2017, the Department of Homeland Security served Zhang a Notice

to Appear charging her with removability under 8 U.S.C. § 1227(a)(1)(B) for

overstaying her visa. In immigration court, Zhang conceded her removability on

this basis. On July 6, 2018, Zhang was served a Notice of Hearing informing her

that a master calendar hearing would take place on August 28, 2018.

2. Zhang failed to appear for her August 28, 2018 hearing, and the IJ

ordered her removed in absentia. The immigration court mailed a copy of the in

absentia removal order to Zhang at her address in Monterey Park, California.

3. On May 28, 2019, Zhang, through counsel, filed a motion to reopen

her in absentia removal order with the IJ, contending that her failure to appear was

due to an exceptional circumstance, her traumatic lumbar sprain. The IJ denied

Zhang’s motion to reopen, holding that the motion was untimely because the 180-

day statutory deadline, see 8 U.S.C. § 1229a(b)(5)(C)(i), meant the motion had to

be filed on or before February 24, 2019. Zhang appealed the decision to the BIA

and argued that the IJ should have applied equitable tolling. Zhang alleged for the

2 first time that her traumatic lumbar sprain prevented her from timely filing her

motion to reopen within the 180-day deadline. The BIA affirmed the IJ’s denial of

the motion as untimely, holding that equitable tolling did not apply because Zhang

had not supported her contention that a physical condition prevented her from

filing the motion until May 28, 2019.

4. An in absentia removal order can be rescinded if a petitioner files a

motion to reopen within 180 days and demonstrates that her “failure to appear was

because of exceptional circumstances.” 8 U.S.C. § 1229a(b)(5)(C)(i). Equitable

tolling of a filing deadline for a motion to reopen is available “during periods when

a petitioner is prevented from filing because or deception, fraud, or error, as long

as the petitioner acts with due diligence in discovering the deception, fraud, or

error.” Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir. 2003).

5. The BIA did not abuse its discretion by finding that Zhang’s motion to

reopen was untimely and did not warrant equitable tolling. Zhang did not give

sufficient evidence to support her contention that her physical condition prevented

her from timely filing her motion to reopen. The written statement, doctor’s note,

and medical records that Zhang provided were all dated August 28, 2018, the date

of Zhang’s hearing at which the IJ issued her in absentia removal order. Zhang did

not provide any evidence supporting her contention that her medical condition

prevented her from filing her motion to reopen until May 28, 2019, more than three

3 months after the 180-day statutory deadline.

PETITION DENIED.