Yue Hua Tan v. Holder
Docket: Nos. 05-74762, 05-71527
Court: Court of Appeals for the Ninth Circuit; June 25, 2009; Federal Appellate Court
Yue Hua Tan and Qing Hua Zhang, citizens of China, petitioned for review of the Board of Immigration Appeals (BIA) orders that denied their motion to reopen immigration proceedings. The review is governed by 8 U.S.C. § 1252, and the court examines for abuse of discretion. The BIA's denial of the motion to reopen was upheld because it was filed nearly eight years after the final order of removal, violating the 90-day filing requirement outlined in 8 C.F.R. § 1003.2(c)(2). The petitioners did not demonstrate any applicable exceptions to justify the late filing as per 8 C.F.R. § 1003.2(c)(3)(h). The court referenced the case He v. Gonzales, which clarifies that the birth of children in the U.S. does not constitute changed circumstances in the petitioners' home country to warrant reopening. Additionally, the petitioners' claim that the BIA did not adequately consider their motion was found unpersuasive. The court also noted a lack of jurisdiction to review challenges to the Immigration Judge's (IJ) underlying order due to the untimeliness of the petition. As a result, the petitions for review were denied in part and dismissed in part. This decision is not designated for publication and does not serve as precedent, except as specified by 9th Cir. R. 36-3.