                                                                           FILED
                            NOT FOR PUBLICATION                             DEC 16 2009

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



                            FOR THE NINTH CIRCUIT


TAY PONHUATA,                                    No. 07-74392

              Petitioner,                        Agency No. A070-088-705

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

              Respondent.


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

                            Submitted June 5, 2009**
                     Withdrawn from Submission July 24, 2009
                         Resubmitted December 14, 2009
                               Las Vegas, Nevada

Before: GOULD and RAWLINSON, Circuit Judges, and BEISTLINE, District
Judge.***




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
        ***
              The Honorable Ralph R. Beistline, United States District Judge for the
District of Alaska, sitting by designation.
       Petitioner, Jiazhong Dong, a.k.a. Tay Ponhuata (“Dong”), a native and

citizen of China, petitions for review of an order by the Board of Immigration

Appeals (BIA) denying his motion to reopen to file a successive asylum

application. We have jurisdiction under 8 U.S.C. § 1252(a)(1) and we deny the

petition.

       First, the BIA did not abuse its discretion by rejecting as time barred Dong’s

motion, filed more than ninety days after the agency entered a final administrative

order, because Dong did not establish a material change in country conditions. See

8 U.S.C. § 1229a(c)(7)(C)(i)–(ii) (requiring that a petitioner show a change in

country conditions to avoid the ninety-day time bar); see also Chen v. Mukasey,

524 F.3d 1028, 1030 (9th Cir. 2008) (same). The BIA explicitly addressed all

documentary evidence submitted by Dong, and was within its discretion in

concluding that the evidence was insufficient to establish a material change in

enforcement of China’s one-child policy against similarly situated individuals. See

Lin v. Holder, --- F.3d ----, No. 08-71227, 2009 WL 4360802, at *7 (9th Cir. Dec.

3, 2009).

       Second, Dong’s argument that he is entitled to file a free-standing asylum

application pursuant to 8 U.S.C. § 1158(a)(2)(D) is foreclosed by our precedent.

See Chen, 524 F.3d at 1032 (holding the BIA’s determination that an asylum


                                          2
application by an alien subject to a final order of removal can be made only in

connection with a motion to reopen under § 1229a(c)(7) is “reasonable, and we

defer to it”).

       Finally, the BIA did not abuse its discretion in denying Dong’s motion to

reopen for protection under the Convention Against Torture, given that Dong did

not meet his threshold burden to establish materially changed conditions in China.

       PETITION DENIED.




                                          3
