Chen v. Blanche
CourtCourt of Appeals for the Ninth Circuit
Date FiledNovember 10, 2026
Docket23-1333
StatusUnpublished
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Full Opinion
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 10 2026
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHAO YU CHEN, No. 23-1333
Agency No.
Petitioner, A097-357-046
v.
MEMORANDUM*
TODD BLANCHE, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 23, 2026**
San Francisco, California
Before: FORREST and TUNG, Circuit Judges, and BASTIAN, District Judge.***
Shao Yu Chen, a citizen of China, seeks review of a decision by the Board of
Immigration Appeals (BIA) denying her motion to reopen proceedings. We have
jurisdiction under 8 U.S.C. § 1252(a)(1), and we deny the petition for review.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Stanley Allen Bastian, United States District Judge for
the Eastern District of Washington, sitting by designation.
We review the BIA’s denial of a motion to reopen for abuse of discretion,
upholding the BIA’s decision “unless it is arbitrary, irrational, or contrary to law.”
Hernandez-Ortiz v. Garland, 32 F.4th 794, 800 (9th Cir. 2022) (internal quotation
marks and citations omitted). We review the BIA’s “exceptional and extremely
unusual hardship determination for substantial evidence.” Torres-Casas v. Blanche,
182 F.4th 1121, 1128 (9th Cir. 2026) (internal quotation marks and citation omitted).
1. Motion to Reopen. In general, the deadline to file a motion to reopen is
“within 90 days of the date of entry of a final administrative order of removal.”
8 U.S.C § 1229a(c)(7)(C)(i). Equitable tolling of this deadline may be appropriate
where there is “a change in the law that invalidates the original basis for removal.”
Lona v. Barr, 958 F.3d 1225, 1230 (9th Cir. 2020); see also Hernandez-Ortiz, 32
F.4th at 801.
In her removal proceedings, Chen was denied cancellation of removal because
she failed to meet the statutory requirements, including ten years of continuous
presence. See 8 U.S.C. § 1229b. She moved to reopen in 2021, about eight years
after her removal proceedings concluded, seeking equitable tolling of the filing
deadline based on the Supreme Court’s decision in Niz-Chavez v. Garland, 593 U.S.
155 (2021). In Niz-Chavez, the Supreme Court expanded on its decision announced
in Pereira v. Sessions, 585 U.S. 198 (2018), that a notice to appear (NTA) must
include the time and place of removal proceedings, by holding that a notice to appear
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also must contain “all the information an individual needs to know about his removal
hearing” in a single document to trigger the “stop-time” rule for purposes of
calculating a petitioner’s “continuous physical presence” under 8 U.S.C. § 1229b.
Niz-Chavez, 593 U.S. at 158, 161. Chen asserts that she was never served a sufficient
NTA and thus had accrued over ten years of physical presence because the “stop-
time” rule was never triggered.
The BIA treated the conclusion of Chen’s removal proceedings in 2013 as the
endpoint for evaluating her period of continuous physical presence. Even assuming
legal error and that equitable tolling applies, the BIA properly concluded that Chen
failed to make the requisite prima facie showing to warrant a motion to reopen. See
Zamorano v. Garland, 2 F.4th 1213, 1228 (9th Cir. 2021) (holding that the BIA’s
errors were harmless because they did not cause the petitioner any prejudice). The
BIA may “deny a motion to reopen” based on a “failure to establish a prima facie
case for the relief sought.” Fonseca-Fonseca v. Garland, 76 F.4th 1176, 1180 (9th
Cir. 2023) (internal quotation marks and citation omitted). Here, Chen seeks
cancellation of removal, which required her to establish a “reasonable likelihood,”
id. at 1183, that removal “would result in exceptional and extremely unusual
hardship” to a qualifying relative, 8 U.S.C. § 1229b(b)(1)(D). Chen failed to make
this prima facie showing. Chen offered evidence that she has a spouse and children
in the United States. As the BIA recognized, that evidence does not support a finding
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of “exceptional and extremely unusual hardship.” Gonzalez-Juarez v. Bondi, 137
F.4th 996, 1006 (9th Cir. 2025) (explaining that to qualify for cancellation of
removal, a hardship must “deviate, in the extreme, from the norm”). Therefore,
substantial evidence supports the BIA’s hardship determination, and the BIA’s
denial of Chen’s motion to reopen was not “arbitrary, irrational, or contrary to law.”
Hernandez-Ortiz, 32 F.4th at 800.
2. Sua Sponte Reopening. Chen also challenges the BIA’s refusal to exercise
its discretion to sua sponte reopen proceedings. The BIA may sua sponte reopen
proceedings under 8 C.F.R. § 1003.2(a) not “as a general cure for filing defects or
to otherwise circumvent the regulations,” but where the BIA is “persuaded that the
[petitioner’s] situation is truly exceptional.” Bonilla v. Lynch, 840 F.3d 575, 585
(9th Cir. 2016) (internal quotation marks and citation omitted). However, absent
legal or constitutional error, to which Chen does not point, we lack jurisdiction to
review the BIA’s decision to deny sua sponte reopening. See id. at 588. Therefore,
we dismiss this aspect of Chen’s petition for lack of jurisdiction.
Petition DENIED in part; DISMISSED in part.
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