NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT NOV 26 2012
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
SANTANO PIO FERNANDES, No. 10-73740
Petitioner, Agency No. A098-159-137
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 13, 2012 **
Before: CANBY, TROTT, and W. FLETCHER, Circuit Judges.
Santano Pio Fernandes, a native and citizen of India, petitions for review of
the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen.
Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of
discretion the BIA’s denial of a motion to reopen. Najmabadi v. Holder, 597 F.3d
*
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).
983, 986 (9th Cir. 2010). We dismiss in part and deny in part the petition for
review.
In light of our prior decision, Fernandes v. Holder, No. 06-75194, 2010 WL
178325 (9th Cir. Jan. 19, 2010), we reject any challenge Fernandes makes to the
agency’s underlying adverse credibility determination or the denial of asylum,
withholding of removal, and relief under the Convention Against Torture.
The BIA did not abuse its discretion in denying Fernandes’s untimely
motion to reopen because he did not establish changed circumstances in India to
qualify for the regulatory exception to the time limit. See 8 C.F.R.
§ 1003.2(c)(3)(ii); Najmabadi, 597 F.3d at 988-89 (new evidence not “qualitatively
different” because it described conditions similar to those in evidence at prior
proceedings); cf. Malty v. Ashcroft, 381 F.3d 942, 945-46 (9th Cir. 2004) (prior
evidence “described only incidents of harassment and discrimination,” but new
evidence showed “the harassment had increased to the level of persecution”).
Further, we lack jurisdiction to review Fernandes’s contentions regarding his social
group claim because he did not raise this claim to the BIA. See Barron v. Ashcroft,
358 F.3d 674, 678 (9th Cir. 2004).
We reject Fernandes’s contention that the BIA denied him due process by
rejecting his motion to reopen because the BIA did not err in denying the motion.
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See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000). Further, contrary to
Fernandes’s contention, the BIA considered his evidence. Finally, given the
foregoing conclusions, we do not reach Fernandes’s remaining contentions, and we
deny his second motion for a stay of removal as moot.
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
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