Xian Lin Chen v. Holder

FILED
NOT FOR PUBLICATION MAR 10 2011

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

FOR THE NINTH CIRCUIT

XIAN LIN CHEN, a.k.a. Jessica Ch Lee, No. 07-74510
a.k.a. Xiangling Chen, a.k.a. Xian Lian
Chen, Agency No. A077-340-800

Petitioner,
MEMORANDUM *
v.

ERIC H. HOLDER, Jr., Attorney General,

Respondent.

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

Submitted February 15, 2011 **

Before: CANBY, FERNANDEZ, and M. SMITH, Circuit Judges.

Xian Lin Chen, a native and citizen of China, petitions for review of the

Board of Immigration Appeals’ (“BIA”) order denying her motion to reopen

removal proceedings. We have jurisdiction under 8 U.S.C. § 1252. We review for

*
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).
abuse of discretion the denial of a motion to reopen, Lin v. Holder, 588 F.3d 981,

984 (9th Cir. 2009), and we deny the petition for review.

The BIA did not abuse its discretion by denying Chen’s motion to reopen as

untimely where the motion was filed nearly four years after the BIA’s December

19, 2002, order dismissing the underlying appeal, see 8 C.F.R. § 1003.2(c)(2), and

Chen failed to show changed circumstances in China in order to qualify for the

regulatory exception to the filing deadline, see id. § 1003.2(c)(3)(ii); Lin, 588 F.3d

at 988-89 (record did not show material change in enforcement of family planning

laws sufficient to establish changed country conditions and excuse an untimely

motion to reopen). Contrary to Chen’s contention, the BIA considered the

evidence she submitted and applied the correct prima facie eligibility requirement.

See Toufighi v. Mukasey, 538 F.3d 988, 996 (9th Cir. 2008).

Chen’s contention that she should have been permitted to file a successive

asylum application under 8 U.S.C. § 1158(a)(2)(D) is foreclosed by Chen v.

Mukasey, 524 F.3d 1028, 1032 (9th Cir. 2008) (an alien subject to a final removal

order may only reapply for asylum through a successful motion to reopen).

PETITION FOR REVIEW DENIED.

2 07-74510