Qing Xu v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION APR 23 2012

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

QING HE XU, No. 09-74031

Petitioner, Agency No. A098-356-856

v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Submitted April 17, 2012 **

Before: LEAVY, PAEZ, and BEA, Circuit Judges.

Qing He Xu, a native and citizen of China, petitions for review of the Board

of Immigration Appeals’ (“BIA”) order denying his motion to reopen. We have

jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of

*
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).
a motion to reopen, Toufighi v. Mukasey, 538 F.3d 988, 992 (9th Cir. 2008), and

we deny the petition for review.

The BIA did not abuse its discretion in denying Xu’s motion to reopen as

untimely where the motion was filed a year and a half after the BIA’s final

decision, see 8 C.F.R. § 1003.2(c)(2), and Xu failed to demonstrate changed

circumstances in China to qualify for the regulatory exception to the time limit, see

8 C.F.R. § 1003.2(c)(3)(ii); Najmabadi v. Holder, 597 F.3d 983, 988-89 (9th

Cir. 2010); see also Toufighi, 538 F.3d at 996-97.

We reject Xu’s contention that the BIA did not adequately address his

evidence. See Fernandez v. Gonzales, 439 F.3d 592, 603 (9th Cir. 2006) (finding

petitioner had not overcome the presumption that the BIA reviewed the record);

see also Najmabadi, 597 F.3d at 990-91 (BIA must consider issues raised and

announce its decision in a manner sufficient for reviewing court to perceive that it

has heard and thought and not merely reacted).

PETITION FOR REVIEW DENIED.

2 09-74031