Dien Hsing Jiang v. Holder

FILED
NOT FOR PUBLICATION SEP 24 2010

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

FOR THE NINTH CIRCUIT

DIEN HSING JIANG, No. 07-71125

Petitioner, Agency No. A072-962-149

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

Respondent.

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

Submitted September 13, 2010 **

Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.

Dien Hsing Jiang, a native and citizen of China, petitions for review of the

Board of Immigration Appeals’ (“BIA”) order denying his motion entitled “motion

to file successive asylum application pursuant to 8 C.F.R. § 208.4 or in the

alternative motion to reopen.” We have jurisdiction under 8 U.S.C. § 1252. We

*
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).
review de novo the BIA’s legal conclusions and due process contentions, see Ram

v. INS, 243 F.3d 510, 516 (9th Cir. 2001), and we deny the petition for review.

Jiang’s argument that he is entitled to file a successive asylum application

based on changed personal circumstances in the United States is foreclosed by this

court’s decision in Chen v. Mukasey, 524 F.3d 1028, 1031-32 (9th Cir. 2008) (an

alien may file a successive asylum application only in connection with a successful

motion to reopen, subject to time and number limitations). Jiang’s contention that

his removal will violate international treaty law is also foreclosed by Chen. See id.

at 1033. Because Jiang was only entitled to file his successive asylum application

in connection with a motion to reopen, see id. at 1031-32, the BIA did not err in

construing his motion as a motion to reopen. Jiang does not otherwise challenge

the BIA’s finding that the motion was untimely and numerically-barred, and that

Jiang failed to established changed circumstances in China to qualify for the

regulatory exception to these bars.

Finally, Jiang’s contentions that the BIA violated his due process rights lack

merit. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000) (holding petitioner

must demonstrate error to prevail on a due process claim).

PETITION FOR REVIEW DENIED.

2 07-71125