                                                                           FILED
                             NOT FOR PUBLICATION                            FEB 24 2014

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



                              FOR THE NINTH CIRCUIT


AUGUSTO MARTINEZ,                                No. 12-70297

               Petitioner,                       Agency No. A070-064-239

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

               Respondent.


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

                             Submitted February 18, 2014**

Before:        ALARCÓN, O’SCANNLAIN, and FERNANDEZ, Circuit Judges.

       Augusto Martinez, a native and citizen of Guatemala, petitions for review of

the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an

immigration judge’s (“IJ”) decision denying his motion to reopen removal

proceedings. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of


          *
             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).
discretion the denial of a motion to reopen. Mohammed v. Gonzales, 400 F.3d 785,

791 (9th Cir. 2005). We deny the petition for review.

      The BIA did not abuse its discretion in dismissing Martinez’s appeal of the

IJ’s denial of his motion to reopen as untimely where it was filed over 90 days after

the agency’s final order of removal, see 8 C.F.R. § 1003.2(c)(2), and Martinez

failed to establish changed circumstances in Guatemala to qualify for the

regulatory exception to the time limitation, see 8 C.F.R. § 1003.2(c)(3)(ii);

Najmabadi v. Holder, 597 F.3d 983, 987 (9th Cir. 2010) (evidence submitted with

motion to reopen must be qualitatively different from the evidence presented at the

original hearing).

      Further, to the extent the BIA construed Martinez’s appeal as a new motion

to reopen the IJ’s decision based on evidence not presented to the IJ, the BIA did

not abuse its discretion in denying the motion because Martinez’s new documents

failed to establish material evidence of changed circumstances in Guatemala. See

Najmabadi, 597 F.3d at 990 (holding that evidence presented with motion to

reopen was not material because it merely recounted generalized conditions that

failed to demonstrate petitioner’s situation was appreciably different from the

dangers faced by her fellow citizens).




                                          2                                     12-70297
      The BIA also did not abuse its discretion in denying Martinez’s motion to

reopen where he failed to comply with the threshold requirements of Matter of

Lozada, 19 I. & N. Dec. 637 (BIA 1988), and the alleged ineffective assistance was

not “plain on the face of the administrative record.” See Castillo-Perez v. INS, 212

F.3d 518, 525 (9th Cir. 2000).

      PETITION FOR REVIEW DENIED.




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