                                                                           FILED
                             NOT FOR PUBLICATION                            JUN 20 2013

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




                             FOR THE NINTH CIRCUIT



PRADEEP BHUSAL,                                  No. 12-70166

               Petitioner,                       Agency No. A098-532-921

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

               Respondent.



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

                             Submitted June 18, 2013 **

Before:        TALLMAN, M. SMITH, and HURWITZ, Circuit Judges.

       Pradeep Bhusal, a native and citizen of Nepal, petitions for review of the

Board of Immigration Appeals’ (“BIA”) order denying his motion to reconsider

and reopen. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse

of discretion the denial of motions to reconsider and reopen, and review de novo


          *
             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).
questions of law. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005).

We deny in part and dismiss in part the petition for review.

      The BIA did not abuse its discretion in denying Bhusal’s motion to

reconsider where Bhusal failed to identify any error of law or fact in the BIA’s

previous order. See 8 C.F.R. § 1003.2(b)(1). Contrary to Bhusal’s contentions, the

BIA did not apply an incorrect evidentiary standard. See Rojas-Garcia v. Ashcroft,

339 F.3d 814, 823 (9th Cir. 2003) (“in immigration proceedings [t]he sole test for

admission of evidence is whether the evidence is probative and its admission is

fundamentally fair” (internal quotations omitted)).

      The BIA properly construed Bhusal’s motion also to be a motion to reopen

in which he submitted new evidence of changed country conditions. See Socop-

Gonzalez v. INS, 272 F.3d 1176, 1180 (9th Cir. 2001) (en banc) (explaining that

“[t]he purpose of a motion to reopen is to present new facts or evidence that would

entitle the alien to relief from deportation” while “[t]he purpose of a motion to

reconsider is not to raise new facts, but rather to demonstrate that the [immigration

judge] or the BIA erred as a matter of law or fact” (emphasis in original)).

      The BIA did not abuse its discretion in denying Bhusal’s motion to reopen

as untimely and number-barred where the successive motion was filed more than

three years after his removal order became final, see 8 C.F.R. § 1003.2(c)(2), and


                                           2                                    12-70166
Bhusal failed to demonstrate a material change in circumstances in Nepal to

qualify for the regulatory exception to the filing deadline, see 8 C.F.R.

§ 1003.2(c)(3)(ii).

         It follows that Bhusal’s due process contentions fail. See Lata v. INS, 204

F.3d 1241, 1246 (9th Cir. 2000) (requiring error and prejudice to prevail on a due

process claim).

         To the extent Bhusal seeks review of the agency’s underlying orders denying

relief, we lack jurisdiction because the petition for review is not timely as to those

orders. See 8 U.S.C. § 1252(b)(1); Singh v. INS, 315 F.3d 1186, 1188 (9th Cir.

2003).

         PETITION FOR REVIEW DENIED in part; DISMISSED in part.




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