Chen Chen v. ERIC H. HOLDER, Jr., Attorney General

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). Accordingly, Chen’s request
for oral argument is denied.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHEN CHEN,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 06-73360
Agency No. A072-094-033
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 29, 2010**
Before: ALARCÓN, LEAVY, and GRABER, Circuit Judges.
Chen Chen, a native and citizen of China, petitions for review of the Board
of Immigration Appeals’ (“BIA”) order denying his motion to reopen removal
proceedings to file a second application for asylum and withholding of removal,
and to request relief under the Convention Against Torture (“CAT”). We have
FILED
JUL 19 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion, 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 in denying Chen’s motion to reopen as
untimely because Chen filed the motion more than 90 days after the BIA’s final
decision, see 8 C.F.R. § 1003.2(c)(2), and his evidence did not demonstrate
changed circumstances in China, see He v. Gonzales, 501 F.3d 1128, 1132 (9th
Cir. 2007) (“[T]he 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 within the regulatory exception to late-filed [motions to
reopen].”).
We reject Chen’s contention that there are no time limits for filing a motion
to reopen to apply for CAT relief. See 8 C.F.R. § 1003.2(c)(2).
Chen’s contention that his successive asylum application should be
considered independent of his motion to reopen is foreclosed. See Lin, 588 F.3d at
989.
Finally, Chen’s due process claim fails because the BIA properly applied the
time limitations for motions to reopen set forth in 8 C.F.R. § 1003.2(c)(2) to his
untimely second application for asylum. See Lata v. INS, 204 F.3d 1241, 1246 (9th

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06-73360 3
Cir. 2000) (requiring error and substantial prejudice for a petitioner to prevail on a
due process claim).
PETITION FOR REVIEW DENIED.

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