Zhen Jien Li v. Gonzales

127 F. App'x 988

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 11, 2005
• Docket: No. 03-72176
• Status: Published

Opinion

MEMORANDUM

**

The immigration judge (“IJ”) did not abuse her discretion when she denied Li’s motion to reopen as untimely. Li was served with notice of his original deportation proceedings by certified mail; after he failed to appear, he was properly ordered deported pursuant to 8 U.S.C. § 1252b(c)(3) (1993) (repealed), despite the scrivener’s error in the deportation order. Accordingly, the time limitations set forth in § 1252b applied to Li’s motion. As it was filed more than eight years after the order of deportation was issued, Li’s motion to reopen was untimely under the statute.

We find Matter of X-G-W, 22 I. & N. Dec. 71 (BIA 1998), inapplicable to this case as Li’s asylum claim was not denied because of Matter of Chang, 20 I. & N. Dec. 38 (BIA 1989), but rather because he failed to appear at his deportation proceedings and was otherwise deportable. See 8 U.S.C. § 1252b(c)(1) (1993). Consequently, no change-in-law exception exempted Li’s motion from the time limitations set forth in § 1252b. Finally, the IJ did not abuse her discretion by declining to equitably toll the time limitations applicable to Li’s motion.

Accordingly, Li’s petition for review of the IJ’s denial of his motion to reopen, and the BIA’s affirmance thereof, is hereby denied.

PETITION 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.