Opinion
No. 08-70284.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed September 24, 2010.
Gary J. Yerman, Esquire, Law Office of Gary J. Yerman, New York, NY, for Petitioner.
OIL, Julia Tyler, Esquire, U.S. Department of Justice, Washington, DC, Chief Counsel Ice, Office of the Chief Counsel, Department of Homeland Security, San Francisco, CA, for Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A070-104-839.
Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Tai-Chi Hsiao, a native and citizen of China, petitions for review of the Board of Immigration Appeals' ("BIA") order denying his motion to reopen removal proceedings. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen. Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir. 2003). We deny the petition for review.
The BIA did not abuse its discretion in denying Hsiao's motion to reopen as untimely where he filed it 12 years after the BIA's final order of deportation, see 8 C.F.R. § 1003.2(c)(2), and Hsiao failed to establish changed circumstances in China to qualify for the regulatory exception to the time limitation, see 8 C.F.R. § 1003.2(c)(3)(ii); see also Lin v. Holder, 588 F.3d 981, 988-89 (9th Cir. 2009) (record did not establish change in family planning laws or enforcement of such laws that would establish changed country conditions excusing untimely motion to reopen).
Hsiao's contention that he should have been permitted to file a successive asylum application is foreclosed. See Lin, 588 F.3d at 989 (rejecting petitioner's contention that, independent from her motion to reopen, she was entitled to file a free-standing asylum application).
Hsiao's contention that the BIA failed to consider the evidence submitted with the motion to reopen fails, because he has not overcome the presumption that the BIA reviewed the record. See Fernandez v. Gonzales, 439 F.3d 592, 603 (9th Cir. 2006).
Finally, we reject Hsiao's contention that the BIA applied improper standards of law in denying his motion to reopen because it is belied by the record.