Luoman Chen v. Eric Holder, Jr.

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT FEB 15 2013

MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS

LUOMAN CHEN, No. 10-73481

Petitioner, Agency No. A070-036-839

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.

Luoman Chen, 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 an abuse of discretion the

*
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).
BIA’s denial of a motion to reopen. He v. Gonzales, 501 F.3d 1128, 1130-31 (9th

Cir. 2007). We deny the petition for review.

The BIA did not abuse its discretion by denying Chen’s motion to reopen as

untimely because the motion was filed over thirteen years late, see 8 C.F.R. §

1003.2(c)(2), and, even accepting Chen’s and his family’s claims as true, he failed

to demonstrate a material change in circumstances in China to qualify for the

regulatory exception to the time limit for filing a motion to reopen, see 8 C.F.R.

§ 1003.2(c)(3)(ii); see also Lin v. Holder, 588 F.3d 981, 988-89 (9th Cir. 2009)

(record did not establish change in family planning laws or enforcement of such

laws that would establish changed country conditions excusing untimely motion to

reopen); He, 501 F.3d at 1132 (change in personal circumstances does not establish

changed circumstances in country of origin). Because the BIA considered Chen’s

evidence in reaching its conclusion, we reject Chen’s contention that the BIA

dismissed his evidence as not credible. Finally, we lack jurisdiction to review the

BIA’s discretionary decision declining to exercise its sua sponte authority under 8

C.F.R. § 1003.2(a). See Mejia-Hernandez v. Holder, 633 F.3d 818, 823-24 (9th

Cir. 2011).

PETITION FOR REVIEW DENIED.

2 10-73481