Si Kao v. Gonzales

MEMORANDUM **

Si Kao, a native and citizen of China, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“U”) decision denying his motion to reopen deportation proceedings so as to apply for asylum. To the extent we have jurisdiction it is under 8 U.S.C. § 1252 . We review de novo questions of law, and review for abuse of discretion the denial of a motion to reopen. Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.2003). We deny in part and dismiss in part the petition for review.

Kao contends that the BIA erred when it found that he received proper notice of the 1993 immigration hearing. This claim is barred by the res judicata doctrine. See Tahoe Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 322 F.3d 1064, 1077 (9th Cir.2003) (applying res judicata when there is an identity of claims, a final judgment on the merits, and privity between parties); Ramon-Sepulveda v. INS, 824 F.2d 749, 750 (9th Cir.1987) (per curiam) (holding that the defense of res judicata may be invoked in immigration proceedings).

Kao contends that his 2005 motion to reopen was not time-barred because the documents he…