MOHAMMAD ALI KHAN, Petitioner, v. ALBERTO GONZALES, Attorney General,[*] Respondent.

No. 03-40170-ag.United States Court of Appeals, Second Circuit.
March 7, 2007.

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]
[*] Pursuant to Federal Rule of Appellate Procedure 43(c)(2), United States Attorney General Alberto Gonzales is autom atically substituted for former United States A ttorney General John Ashcroft as respondent in this action. The Clerk of the Court is requested to amend the official caption accordingly.

UPON DUE CONSIDERATION of this petition for review of a decision of the Board of Immigration Appeals (“BIA”),IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the petition for review is DENIED.

APPEARING FOR PETITIONER: SALIM SHEIKH, New York, NY.

APPEARING FOR RESPONDENT: KEITH McMANUS, Office of Immigration Litigation United States Department of Justice, Washington, DC (Geoffrey A. Barrow, Assistant United States Attorney, Karin J. Immergut, United States Attorney for the District of Oregon, Portland, OR, on the brief.)

PRESENT: AMALYA L. KEARSE JOSÉ A. CABRANES ROBERT A. KATZMANN Circuit Judges.

Petitioner Mohammad Ali Khan petitions for review of a decision of the BIA denying his motion to reopen. See In re Mohammad Ali Khan, No. A 73 038 637 (B.I.A. June 27, 2003). We assume the parties’ familiarity with the facts, the issues on appeal and the procedural history.

We review denial of a motion to reopen for abuse of discretion See Jie Chen v. Gonzales, 436 F.3d 76, 77 (2d Cir. 2006); Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005). We conclude that the BIA did not abuse its discretion in denying petitioner’s motion to reopen as untimely. With limited exceptions, a motion to reopen in any case previously the subject of a final decision by the BIA must be filed no later than ninety days after the date of the BIA’s decision, and no more than one motion to reopen may be filed. See 8 C.F.R. § 1003.2(c)(2). Yet petitioner’s motion to reopen — his third — was filed more than a year after the BIA decision that he sought to reopen. Petitioner could not rely on the “changed circumstances” provision of 8 C.F.R. § 1003.2(c)(3)(ii) (permitting an alien to reopen removal proceedings at any time based on evidence of “changed circumstances arising in the country of nationality . . . if such evidence is material and was not available and could not have been discovered or presented at the previous hearing”) to reopen his removal proceedings because the evidence that petitioner introduced to the BIA was available at the time he filed his first two motions to reopen.

For the foregoing reasons, the petition for review is DENIED. Having completed our review, petitioner’s pending motion for a stay of removal is DENIED as moot. We have reviewed Khan’s untimely supplemental brief and determined that it would not affect the outcome of the petition. Consequently, Khan’s motion for permission to file the brief late is also DENIED as moot.

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