Tungalag Balchigsuren, et al v. Eric H. Holder Jr., No. 08-74945 (9th Cir. 2011)

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FILED JAN 19 2011 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT TUNGALAG BALCHIGSUREN; et al., Petitioners, No. 08-74945 Agency Nos. A098-525-500 A098-525-501 v. ERIC H. HOLDER, Jr., Attorney General, MEMORANDUM * Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted January 10, 2011 ** Before: BEEZER, TALLMAN, and CALLAHAN, Circuit Judges. Tungalag Balchigsuren and her daughter, natives and citizens of Mongolia, petition for review of the Board of Immigration Appeals ( BIA ) order denying their 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 denial of a motion to reopen, Malty v. Ashcroft, 381 F.3d 942, 945 (9th Cir. 2004), and we deny the petition for review. The BIA did not abuse its discretion in denying petitioners motion to reopen as untimely because petitioners did not file the motion within 90 days of the BIA s final order of removal, see 8 C.F.R. § 1003.2(c)(2), and they failed to demonstrate material changed circumstances in Mongolia to qualify for the regulatory exception to the time limit, see 8 C.F.R. § 1003.2(c)(3)(ii); see also Toufighi v. Mukasey, 538 F.3d 988, 996-97 (9th Cir. 2008) (evidence must demonstrate prima facie eligibility for relief in order to reopen proceedings based on changed circumstances). The record does not support petitioners contentions that the BIA failed to accept the facts in their supporting affidavits as true and failed to evaluate the petitioners new facts in the context of the country conditions evidence. PETITION FOR REVIEW DENIED. 2 08-74945

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