                                                                            FILED
                             NOT FOR PUBLICATION                             DEC 15 2014

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                              FOR THE NINTH CIRCUIT


JINGWU JIN,                                      No. 13-71275

               Petitioner,                       Agency No. A088-280-043

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

               Respondent.


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

                             Submitted December 9, 2014**

Before:        WALLACE, LEAVY, and BYBEE, Circuit Judges.

       Jingwu Jin, a native and citizen of China, petitions for review of the Board

of Immigration Appeals’ order dismissing his appeal from an immigration judge’s

decision denying his motion to reopen removal proceedings conducted in absentia.

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


          *
             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).
denial of a motion to reopen. Avagyan v. Holder, 646 F.3d 672, 674 (9th Cir.

2011). We deny the petition for review.

      The agency did not abuse its discretion by denying as untimely Jin’s motion

to reopen where he filed his motion nearly three years after his in absentia order of

removal became administratively final, see 8 U.S.C. § 1229a(b)(5)(C); 8 C.F.R.

§ 1003.23(b)(1), (4), and Jin did not present sufficient evidence to rebut the

presumption of effective delivery, see Popa v. Holder, 571 F.3d 890, 897-98 (9th

Cir. 2009) (“The government satisfies notice requirements ‘by mailing notice of

the hearing to an alien at the address last provided to the [agency].’” (citation

omitted)); Sembiring v. Gonzales, 499 F.3d 981, 988-89 (9th Cir. 2007)

(identifying factors relevant to evaluating a petitioner’s rebuttal of the presumption

of effective delivery). In addition, Jin failed to demonstrate the due diligence

necessary to warrant equitable tolling of the filing deadline. See Avagyan, 646

F.3d at 679.

      In light of our disposition, we do not reach Jin’s remaining contentions.

      PETITION FOR REVIEW DENIED.




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