                                                                           FILED
                             NOT FOR PUBLICATION                            FEB 14 2013

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




                              FOR THE NINTH CIRCUIT



WANIJA PRABACHANDRA                               No. 10-72000
MAHINDRATHAN,
                                                  Agency No. A078-444-887
               Petitioner,

  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.

       Wanija Prabachandra Mahindrathan, a native and citizen of Sri Lanka,

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.




          *
             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 BIA’s denial of a motion to reopen,

Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010), and we deny the petition

for review.

      The BIA did not abuse its discretion in denying Mahindrathan’s untimely

motion to reopen because Mahindrathan failed to present material evidence of

changed circumstances in Sri Lanka to qualify for the regulatory exception to the

time limitation for filing a motion to reopen. See 8 C.F.R. § 1003.2(c), Najmabadi,

597 F.3d at 988-89 (evidence of changed circumstances must be qualitatively

different from what could have been presented at prior hearing); Malty v. Ashcroft,

381 F.3d 942, 945 (9th Cir. 2004) (“the critical question is . . . whether

circumstances have changed sufficiently that a petitioner who previously did not

have a legitimate claim for asylum now has a well-founded fear of future

persecution.”).

      We reject Mahindrathan’s contention that the BIA’s recent decision on the

merits constitutes a “material change,” because contrary to his assertions, the

agency denied his claims both on credibility and on the merits.

      Finally, we reject Mahindrathan’s request for en banc review of the BIA’s

failure to reopen the case on its own motion.

      PETITION FOR REVIEW DENIED.


                                           2                                      10-72000
