                                                                           FILED
                             NOT FOR PUBLICATION                            JUN 21 2011

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




                             FOR THE NINTH CIRCUIT



JIAN ZHANG,                                      No. 10-70507

               Petitioner,                       Agency No. A099-366-341

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

               Respondent.



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

                             Submitted June 15, 2011 **

Before:        CANBY, O’SCANNLAIN, and FISHER, Circuit Judges.

       Jian Zhang, a 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. 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, and review de novo questions of law,

including claims of due process violations. Hamazaspyan v. Holder, 590 F.3d 744,

747 (9th Cir. 2009). We deny the petition for review.

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

where Zhang failed to establish exceptional circumstances beyond his control that

would excuse his failure to appear at his hearing. See 8 U.S.C. § 1229a(e)(1).

      The agency did not violate due process by considering due diligence as a

factor in denying Zhang’s motion to reopen where the BIA’s precedent decision in

Matter of J-P-, 22 I. & N. Dec. 33 (BIA 1998) (en banc) put Zhang on notice that

this factor applied. Cf. Singh v. INS, 213 F.3d 1050, 1053 (9th Cir. 2000) (BIA

violates due process by applying a “previously unannounced evidentiary

standard”).

      PETITION FOR REVIEW DENIED.




                                         2                                   10-70507
