                                                                            FILED
                             NOT FOR PUBLICATION                             JUN 09 2010

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



KUI TONG,                                        No. 08-70701

               Petitioner,                       Agency No. A095-291-557

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

               Respondent.



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

                             Submitted May 25, 2010 **

Before:        CANBY, THOMAS, and W. FLETCHER, Circuit Judges.

       Kui Tong, a native and citizen of China, petitions pro se for review of the

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

proceedings to apply for asylum, withholding of removal and protection under the

Convention Against Torture (“CAT”). 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, He v.

Gonzales, 501 F.3d 1128, 1130 (9th Cir. 2007), and we deny in part and dismiss in

part the petition for review.

      The BIA did not abuse its discretion in denying Tong’s motion to reopen as

untimely because Tong filed it more than ninety days after his final order of

removal. See 8 U.S.C. § 1229a(c)(7)(C)(i). The exception to the time limit based

on changed country conditions does not apply because Tong’s letter from his

“Elder Brother” did not present material evidence of changed country conditions

that was not available and could not have been presented at the previous

proceeding. See 8 C.F.R. § 1003.2(c)(3)(ii); He, 501 F.3d at 1131.

      We lack jurisdiction to review the BIA’s order dismissing Tong’s direct

appeal from the immigration judge’s decision because this petition for review is

not timely as to that order. See Singh v. INS, 315 F. 3d 1186, 1188 (9th Cir. 2003).

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.




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