                                                                            FILED
                             NOT FOR PUBLICATION                            MAR 22 2016

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



                             FOR THE NINTH CIRCUIT


JOSE JAVIER MURILLO-ZAPATA,                      No. 14-73175

               Petitioner,                       Agency No. A073-001-882

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

               Respondent.


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

                             Submitted March 15, 2016**

Before:        GOODWIN, LEAVY, and CHRISTEN, Circuit Judges.

      Jose Javier Murillo-Zapata, a native and citizen of Honduras, 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.


          *
             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).
We review for abuse of discretion the denial of a motion to reopen, and review de

novo constitutional claims. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th

Cir. 2005). We deny the petition for review.

      The agency did not abuse its discretion or violate due process in denying

Murillo-Zapata’s motion to reopen and rescind his in absentia order of removal,

where notice of the hearing was sent to his counsel of record and to Murillo-

Zapata’s last known mailing address, and the record shows Murillo-Zapata failed

to apprise the immigration court of his new address. See 8 U.S.C.

§ 1229a(b)(5)(C)(ii); Popa v. Holder, 571 F.3d 890, 897-98 (9th Cir. 2009) (the

government satisfies statutory notice requirements and due process by mailing the

notice of hearing to the last address provided by the alien, where the alien failed to

provide a change of address at which he can be contacted); Al Mutarreb v. Holder,

561 F.3d 1023, 1028 n.6 (9th Cir. 2009) (service of the notice of hearing to an

alien’s counsel, and not to the alien himself, may be sufficient). Contrary to

Murillo-Zapata’s contention, there is no statute of limitations within which the

Department of Homeland Security must move to recalendar a case that had been

administratively closed.

      The agency did not abuse its discretion in denying Murillo-Zapata’s motion

to reopen based on exceptional circumstances, where he filed it three years after


                                           2                                     14-73175
the date of his removal order, see 8 C.F.R. § 1003.23(b)(4)(ii) (setting a 180-day

deadline), and failed to establish the due diligence required to warrant equitable

tolling of the deadline, see Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir. 2011)

(equitable tolling of filing deadlines is available to a petitioner who is prevented

from properly filing due to deception, fraud, or error, and who exercises due

diligence in discovering such circumstances).

      The agency also did not abuse its discretion in denying as untimely Murillo-

Zapata’s motion to reopen to apply for asylum and related relief, where he fails to

challenge the agency’s determination that he did not establish changed country

conditions, and instead solely contends he was unable to previously present his

case due to lack of notice. See 8 U.S.C. § 1229a(c)(7)(C)(i)-(ii).

      Contrary to Murillo-Zapata’s contention, the BIA sufficiently considered his

arguments and articulated its reasons for dismissing his appeal. See Najmabadi v.

Holder, 597 F.3d 983, 990 (9th Cir. 2010) (“What is required is merely that [the

BIA] consider the issues raised, and announce its decision in terms sufficient to

enable a reviewing court to perceive that it has heard and thought and not merely

reacted.” (citation and quotation marks omitted)).

      PETITION FOR REVIEW DENIED.




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