Xiuqin Yan v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
XIUQIN YAN,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 20-71630
Agency No. A200-781-003
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 16, 2023**
Before: BENNETT, MILLER, and VANDYKE, Circuit Judges.
Xiuqin Yan, native and citizen of China, petitions pro se for review of the
Board of Immigration Appeals’ (“BIA”) order denying her motion to reopen
removal proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. We review
for abuse of discretion the BIA’s denial of a motion to reopen. Bonilla v. Lynch,
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
MAY 19 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 20-71630
840 F.3d 575, 581 (9th Cir. 2016). We deny in part and dismiss in part the petition
for review.
The BIA did not abuse its discretion in denying Yan’s motion to reopen as
untimely where it was filed more than three years after the final removal order, and
Yan has not established that any statutory or regulatory exception applies. See
8 U.S.C. § 1229a(c)(7)(C)(i) (motion to reopen must be filed within ninety days of
the final removal order); 8 C.F.R. § 1003.2(c)(2) (listing exceptions).
Our jurisdiction to review the BIA’s denial of a motion to reopen sua sponte
is limited to determining whether the BIA based its decision on legal or
constitutional error. See Bonilla, 840 F.3d at 581-82. Yan has not shown any legal
error underlying the BIA’s determination that she is ineligible for any benefits
under the Immigration and Nationality Act, including adjustment of status, where
she was found to have filed a frivolous application for asylum. See 8 U.S.C.
§ 1158(d)(6); see also Manhani v. Barr, 942 F.3d 1176, 1178 (9th Cir. 2019) (“[A]
determination that an applicant filed a frivolous asylum application renders the
applicant permanently ineligible for immigration relief.”) (citation and internal
quotation marks omitted). We lack jurisdiction to consider Yan’s remaining
contentions as to the BIA’s denial of sua sponte reopening. See Bonilla, 840 F.3d
at 588.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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