                                                                           FILED
                              NOT FOR PUBLICATION                           SEP 28 2010

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




                              FOR THE NINTH CIRCUIT



HUAYU YAN,                                        No. 08-73023

               Petitioner,                        Agency No. A095-179-336

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

               Respondent.



                      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


          *
             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).
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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