Huayu Yan 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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HUAYU YAN,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 08-73023
Agency No. A095-179-336
MEMORANDUM*
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
FILED
SEP 28 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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08-73023 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.

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