FILED
NOT FOR PUBLICATION FEB 14 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
WANIJA PRABACHANDRA No. 10-72000
MAHINDRATHAN,
Agency No. A078-444-887
Petitioner,
v. MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 11, 2013 **
Before: FERNANDEZ, TASHIMA, and WARDLAW, Circuit Judges.
Wanija Prabachandra Mahindrathan, a native and citizen of Sri Lanka,
petitions for review of the Board of Immigration Appeals (“BIA”) order denying
his motion to reopen removal proceedings. 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 BIA’s denial of a motion to reopen,
Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010), and we deny the petition
for review.
The BIA did not abuse its discretion in denying Mahindrathan’s untimely
motion to reopen because Mahindrathan failed to present material evidence of
changed circumstances in Sri Lanka to qualify for the regulatory exception to the
time limitation for filing a motion to reopen. See 8 C.F.R. § 1003.2(c), Najmabadi,
597 F.3d at 988-89 (evidence of changed circumstances must be qualitatively
different from what could have been presented at prior hearing); Malty v. Ashcroft,
381 F.3d 942, 945 (9th Cir. 2004) (“the critical question is . . . whether
circumstances have changed sufficiently that a petitioner who previously did not
have a legitimate claim for asylum now has a well-founded fear of future
persecution.”).
We reject Mahindrathan’s contention that the BIA’s recent decision on the
merits constitutes a “material change,” because contrary to his assertions, the
agency denied his claims both on credibility and on the merits.
Finally, we reject Mahindrathan’s request for en banc review of the BIA’s
failure to reopen the case on its own motion.
PETITION FOR REVIEW DENIED.
2 10-72000