                                                                            FILED
                              NOT FOR PUBLICATION                            NOV 30 2009

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




                              FOR THE NINTH CIRCUIT



 MAGDARLINE HERARD,                               No. 08-73784

               Petitioner,                        Agency No. A079-778-052

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

               Respondent.



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

                             Submitted November 17, 2009 **

Before:        ALARCÓN, TROTT, and TASHIMA, Circuit Judges.

        Magdarline Herard, a native and citizen of Haiti, petitions for review of the

Board of Immigration Appeals’ order dismissing her appeal from an immigration

judge’s decision denying her motion to reopen removal proceedings. We have



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).

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jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the agency’s

denial of a motion to reopen, Lara-Torres v. Ashcroft, 383 F.3d 968, 972 (9th Cir.

2004), amended by 404 F.3d 1105 (9th Cir. 2005), and we deny the petition for

review.

       The agency did not abuse its discretion in denying Herard’s motion to

reopen as untimely because the motion was filed more than five years after the

final order of removal, see 8 C.F.R. § 1003.23(b)(1), and Herard failed to

demonstrate changed circumstances in Haiti to qualify for the regulatory exception

to the time limits for filing motions to reopen, see 8 C.F.R. § 1003.23(b)(4)(i), see

also 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.”).

       PETITION FOR REVIEW DENIED.




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