Huayu Yan v. Eric H. Holder Jr., No. 08-73023 (9th Cir. 2010)

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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS SEP 28 2010 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT HUAYU YAN, No. 08-73023 Petitioner, Agency No. A095-179-336 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. Huayu Yan, a native and citizen of China, petitions for review of the Board of Immigration Appeals ( BIA ) order dismissing her appeal from an immigration judge s decision denying her motion to reopen removal proceedings. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial 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). a motion to reopen, Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir. 2003), and we deny the petition for review. The agency did not abuse its discretion in denying Yan s motion to reopen as untimely because it was filed over two years after the BIA s final order of removal. See 8 U.S.C. § 1229a(c)(7)(C)(i) (motion to reopen must be filed within ninety days of final order of removal). Yan did not show she was entitled to equitable tolling, see Iturribarria, 321 F.3d at 897 (deadline for filing motion to reopen can be equitably tolled when a petitioner is prevented from filing because of deception, fraud, or error, as long as the petitioner acts with due diligence ), or establish changed circumstances in China to qualify for the regulatory exception to the time limit for filing motions to reopen, see 8 C.F.R. § 1003.2(c)(3)(ii); He v. Gonzales, 501 F.3d 1128, 1132 (9th Cir. 2007) (the birth of children outside the country of origin is a change in personal circumstances that is not sufficient to establish changed circumstances in the country of origin excusing the untimely filing of a motion to reopen). PETITION FOR REVIEW DENIED. 2 08-73023

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