                                                                            FILED
                             NOT FOR PUBLICATION                             JUL 24 2012

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



LI ZHU,                                          No. 10-72289

               Petitioner,                       Agency No. A095-450-164

  v.
                                                 MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

               Respondent.



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

                             Submitted July 17, 2012 **

Before:        SCHROEDER, THOMAS, and SILVERMAN, Circuit Judges.

       Li Zhu, a native and citizen of China, petitions for review of the Board of

Immigration Appeals’ (“BIA”) order dismissing her appeal from an immigration

judge’s (“IJ”) order denying her motion to reopen proceedings conducted in

absentia. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
discretion the denial of a motion to reopen, Iturribarria v. INS, 321 F.3d 889, 894

(9th Cir. 2003), and we deny the petition for review.

       The agency did not abuse its discretion in denying Zhu’s motion to reopen as

untimely because the motion was filed more than five years after the final order of

removal, see 8 U.S.C. § 1229a(b)(5)(C)(i) (an alien seeking to reopen and rescind

an in absentia removal order based on exceptional circumstances must file the

motion within 180 days), and Zhu failed to establish the due diligence required for

equitable tolling of the filing deadline, see Iturribarria, 321 F.3d at 897.

       Zhu failed to raise, and therefore waived, any challenge to the BIA’s denial

of her motion to remand her case to the IJ for consideration of new evidence. See

Rizk v. Holder, 629 F.3d 1083, 1091 n.3 (9th Cir. 2011) (a petitioner waives an

issue by failing to raise it in the opening brief).

       PETITION FOR REVIEW DENIED.




                                             2                                 10-72289
