                                                                            FILED
                             NOT FOR PUBLICATION                             SEP 03 2015

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


FENGTING LI,                                     No. 12-73850

               Petitioner,                       Agency No. A097-873-053

 v.
                                                 MEMORANDUM*
LORETTA E. LYNCH, Attorney General,

               Respondent.


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

                             Submitted August 25, 2015**

Before:        McKEOWN, CLIFTON, and HURWITZ, Circuit Judges.

      Fengting Li, a native and citizen of China, petitions for review of the Board

of Immigration Appeals’ (“BIA”) order denying his motion to reopen removal

proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for

abuse of discretion the denial of a motion to reopen, and review de novo


          *
             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).
constitutional claims. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.

2005). We deny in part and dismiss in part the petition for review.

      The BIA did not abuse its discretion in denying as untimely Li’s motion to

reopen, where he filed the motion over five years after his order of removal

became final, see 8 C.F.R. § 1003.2(c)(2), and failed to establish that any statutory

or regulatory exception applies, see 8 C.F.R. § 1003.2(c)(3) (setting forth

exceptions to the filing deadline for motions to reopen).

      The BIA did not abuse its discretion in denying Li’s motion to reopen based

on ineffective assistance of counsel, where Li failed to demonstrate prior counsel’s

allegedly ineffective assistance prejudiced him. See Iturribarria v. INS, 321 F.3d

889, 897-98 (9th Cir. 2003).

      Accordingly, Li’s claim that his right to due process was violated when he

was not provided an opportunity to submit new evidence regarding his son’s

religious activities fails. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (to

prevail on a due process challenge, an alien must show error and prejudice).

        We lack jurisdiction to review the BIA’s decision not to exercise its sua

sponte authority to reopen proceedings. See Mejia-Hernandez v. Holder, 633 F.3d

818, 823-24 (9th Cir. 2011).




                                          2                                    12-73850
      In light of our disposition, we need not reach Li’s remaining contentions

concerning the materiality of evidence regarding his son’s religious activities. See

Mendez-Alcaraz v. Gonzales, 464 F.3d 842, 844 (9th Cir. 2006) (declining to reach

nondispositive challenges to an agency order).

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.




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