Ai Yu Yea v. Ashcroft

MEMORANDUM **

Ai Yu Yea, native and citizen of the People’s Republic of China, petitions for review of the Board of Immigration Appeals’ (“BIA”) denial of her motion to reopen proceedings in order to reassert a claim under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“Convention Against Torture”).

We have jurisdiction pursuant to 8 U.S.C. § 1252 (b). We review the BIA’s denial of a motion to reopen for abuse of discretion, and the BIA’s factual findings under the substantial evidence standard. Kamalthas v. INS, 251 F.3d 1279, 1281 (9th Cir.2001). We deny the petition.

The BIA dismissed Yea’s appeal because she failed to provide any new evidence that could not have been presented at the prior hearing, as mandated by 8 C.F.R. § 3.2 (c)(1) (“A motion to reopen proceedings shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing”).

Yea could have obtained and presented her evidence at the time of her original hearing; therefore, the BIA did not err by denying her motion to reopen. See…