                                                                           FILED
                             NOT FOR PUBLICATION                            JUL 19 2010

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



CHEN CHEN,                                       No. 06-73360

               Petitioner,                       Agency No. A072-094-033

  v.
                                                 MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

               Respondent.



                      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

          *
             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.
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




                                          2                                       06-73360
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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