Hui Chen v. Eric Holder, Jr.

MEMORANDUM

Hui Xin Chen, a native and citizen of China, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying her motion to reopen. We have jurisdiction under 8 U.S.C. § 1252 . We review for abuse of discretion the BIA’s denial of a motion to reopen. Bhasin v. Gonzales, 423 F.3d 977, 983 (9th Cir.2005). We grant the petition for review, and we remand.

In Chen’s original proceedings before the agency, Chen was a derivative on her husband’s asylum application, and the agency denied relief. After Chen and her husband filed a petition for review, her husband withdrew his application, and we dismissed the petition, noting the dismissal was without prejudice to Chen filing an application on her own behalf. Chen subsequently filed a motion to reopen, re questing reopening to file a new application in her own right, and also asserting changed country conditions. The BIA denied Chen’s motion as untimely, finding that she failed to show changed circumstances to qualify for the regulatory exception provided in 8 C.F.R. § 1003.2 (c)(3)(ii).

The BIA abused its discretion by failing to consider Chen’s separate request for reopening to file a new asylum application…