Kui Tong v. Holder , 382 F. App'x 660 ( 2010 )

FILED
NOT FOR PUBLICATION JUN 09 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
KUI TONG, No. 08-70701
Petitioner, Agency No. A095-291-557
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 25, 2010 **
Before: CANBY, THOMAS, and W. FLETCHER, Circuit Judges.
Kui Tong, a native and citizen of China, petitions pro se for review of the
Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen
proceedings to apply for asylum, withholding of removal and protection under the
Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C.
*
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).
§ 1252. We review for abuse of discretion the denial of a motion to reopen, He v.
Gonzales, 501 F.3d 1128, 1130 (9th Cir. 2007), and we deny in part and dismiss in
part the petition for review.
The BIA did not abuse its discretion in denying Tong’s motion to reopen as
untimely because Tong filed it more than ninety days after his final order of
removal. See 8 U.S.C. § 1229a(c)(7)(C)(i). The exception to the time limit based
on changed country conditions does not apply because Tong’s letter from his
“Elder Brother” did not present material evidence of changed country conditions
that was not available and could not have been presented at the previous
proceeding. See 8 C.F.R. § 1003.2(c)(3)(ii); He, 501 F.3d at 1131.
We lack jurisdiction to review the BIA’s order dismissing Tong’s direct
appeal from the immigration judge’s decision because this petition for review is
not timely as to that order. See Singh v. INS, 315 F. 3d 1186, 1188 (9th Cir. 2003).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
2 08-70701