                                                                           FILED
                             NOT FOR PUBLICATION                            JAN 29 2015

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


                             FOR THE NINTH CIRCUIT


KALEB JORAM KODONGAN,                            No. 11-73827

               Petitioner,                       Agency No. A096-194-929

  v.
                                                 MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,

               Respondent.


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

                             Submitted January 21, 2015**

Before:        CANBY, GOULD, and N.R. SMITH, Circuit Judges.

       Kaleb Joram Kodongan, a native and citizen of Indonesia, 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. § 1252. We

review for abuse of discretion the denial of a motion to reopen. Najmabadi v.

Holder, 597 F.3d 983, 986 (9th Cir. 2010). We deny the petition for review.


          *
             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).
      The BIA did not abuse its discretion in denying Kodongan’s untimely

motion to reopen for failure to establish prima facie eligibility for the relief sought.

See id. (explaining the BIA can deny a motion to reopen based on at least three

independent grounds, including “failure to establish a prima facie case for the relief

sought”); Wakkary v. Holder, 558 F.3d 1049, 1065 (9th Cir. 2009) (even under

disfavored group analysis, petitioner must present some evidence of individualized

risk); Silaya v. Mukasey, 524 F.3d 1066, 1073 (9th Cir. 2008) (petitioner failed to

demonstrate it is more likely than not petitioner would be tortured if returned). We

reject Kodongan’s contention that the BIA erred in denying his motion to reopen

on this basis.

      Further, in light of the court’s decision in Kodongan v. Mukasey, No. 06-

71251, 2008 WL 4949149 (9th Cir. Nov. 13, 2008), the BIA did not abuse its

discretion in denying the motion to reopen to apply our decisions in Wakkary, 558

F.3d at 1049, and Tampubolon v. Holder, 610 F.3d 1056 (9th Cir. 2010).

      This dismissal is without prejudice to petitioner’s seeking prosecutorial

discretion or deferred action from the Department of Homeland Security. See

Reno v. American-Arab Anti-Discrimination Committee (AADC), 525 U.S. 471,

483-85 (1999) (stating that prosecutorial discretion by the agency can be granted at

any stage, including after the conclusion of judicial review).

      PETITION FOR REVIEW DENIED.

                                            2                                     11-73827
