                             NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                           FILED
                             FOR THE NINTH CIRCUIT                            SEP 09 2013

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

AHMED ZZIZINGA MUYINGO,                          No. 11-72200

               Petitioner,                       Agency No. A070-367-287

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

               Respondent.


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

                             Submitted May 20, 2013**

Before:        HUG, FARRIS, and LEAVY, Circuit Judges.

       Ahmed Zzizinga Muyingo, a native and citizen of Uganda, petitions pro se

for review of the Board of Immigration Appeals’ (“BIA”) order denying his fourth

motion to reopen proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252.

We review for an abuse of discretion the BIA’s denial of the motion to reopen, see


          *
             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).
Toufighi v. Mukasey, 538 F.3d 988, 992 (9th Cir. 2008), and we deny the petition

for review.

      Muyingo contends that the agency wrongly ordered him deported before

there was a final judgment in his state criminal case and also contends that his

conviction for violating Oregon Revised Statute § 163.411 is not an aggravated

felony conviction. Muyingo’s petition for review of these legal issues is untimely,

and we therefore lack jurisdiction to consider these issues. See 8 U.S.C. §

1252(b)(1); Membreno v. Gonzales, 425 F.3d 1227, 1229 (9th Cir. 2005) (en banc).

      To the extent that Muyingo contends that the BIA abused its discretion by

failing to exercise its authority to sua sponte reopen his case, we lack jurisdiction

to consider that issue as well. See Minasyan v. Mukasey, 553 F.3d 1224, 1229 (9th

Cir. 2009) (recognizing that this court does not have jurisdiction to review an

alien’s claim that the BIA should have exercised its sua sponte power to reopen);

Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir. 2002).

      The BIA’s denial of Muyingo’s motion to reopen for purposes of applying

for deferral of removal under the Convention Against Torture was on the merits.

We therefore have jurisdiction to consider Muyingo’s contention that the BIA

should have reopened proceedings to allow him to pursue deferral of removal. See

Alphonsus v. Holder, 705 F.3d 1031, 1036-37 (9th Cir. 2013); Haile v. Holder, 658


                                           2
F.3d 1122, 1130 (9th Cir. 2011); Lemus-Galvan v. Mukasey, 518 F.3d 1081, 1084

(9th Cir. 2008). The BIA did not abuse its discretion in denying Muyingo’s

motion to reopen as untimely and number-barred because it was his fourth motion

to reopen and filed more than 90 days after the BIA issued its final order, and

Muyingo failed to present the material evidence of changed circumstances in

Uganda that was required to qualify for the regulatory exception to the time and

numerical limits for filing motions to reopen. See 8 C.F.R. § 1003.2(c)(2), 8

C.F.R. § 1003.2(c)(3)(ii); see also Malty v. Ashcroft, 381 F.3d 942, 945 (9th Cir.

2004) (holding that the critical question is whether circumstances in country have

changed sufficiently so that the petitioner now has a legitimate claim).

      We do not consider issues raised for the first time in Muyingo’s reply brief.

See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004); Martinez-Serrano v.

INS, 94 F.3d 1256, 1259 (9th Cir. 1996).

      PETITION FOR REVIEW DENIED.




                                           3
