                                                                            FILED
                              NOT FOR PUBLICATION                           SEP 28 2015

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



                              FOR THE NINTH CIRCUIT


HAIQING ZHU,                                      No. 08-70865

               Petitioner,                        Agency No. A099-040-124

 v.
                                                  MEMORANDUM*
LORETTA E. LYNCH, Attorney General,

               Respondent.


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

                             Submitted September 21, 2015**

Before:        REINHARDT, LEAVY, and BERZON, Circuit Judges.

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

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

judge’s decision denying his motion to reopen removal proceedings conducted in

absentia. Our jurisdiction is governed by 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. Mohammed v. Gonzales, 400 F.3d 785,

791-92 (9th Cir. 2005). We deny in part and dismiss in part the petition for review.

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

to reopen, where it was filed approximately ten months after issuance of his order

of removal in absentia, and Zhu failed to establish any statutory or regulatory basis

to excuse the untimeliness of his motion. See 8 C.F.R. § 1003.23(b)(4)(ii); 8

U.S.C. § 1229a(b)(5)(C). Nor did the agency abuse its discretion by declining to

equitably toll the 180-day filing deadline. Iturribarria v. INS, 321 F.3d 889, 898

(9th Cir. 2003) (equitable tolling may be warranted when ineffective assistance of

counsel causes late filing of a motion to reopen).

      To the extent Zhu seeks to raise additional grounds for establishing

exceptional circumstances, we lack jurisdiction to consider these unexhausted

contentions. See Tijani v. Holder, 628 F.3d 1071, 1080 (9th Cir. 2010) (“We lack

jurisdiction to review legal claims not presented in an alien’s administrative

proceedings before the BIA.”). We likewise lack jurisdiction to consider Zhu’s

unexhausted due process claim regarding his first hearing, and – to the extent he

requests it – sua sponte reopening of his case. Id.

      We deny Zhu’s motion to take judicial notice of documents, and do not

consider the unexhausted contentions regarding ineffective assistance raised in the


                                          2                                      08-70865
motion. See id.; Fisher v. INS, 79 F.3d 955, 963 (9th Cir. 1996) (en banc) (the

court’s review is limited to the administrative record).

      In light of this disposition, we need not reach Zhu’s remaining contentions.

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.




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