Victor OCTAVIANUS, Petitioner, v. Eric H. HOLDER Jr., United States Attorney General, Respondent, 315 F. App'x 343

SUMMARY ORDER Victor Octavianus, a native and citizen of Indonesia, seeks review of the June 13, 2008, order of the BIA denying his motion to reopen his removal proceedings. In re Victor Octavianus, No. [ AXX XXX XXX ] (B.I.A. June 13, 2008). We assume the parties’ familiarity with the underlying facts and procedural history of the case. We review the BIA’s denial of a motion to reopen for abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.2005) (per curiam).

Here, we find no abuse of discretion in the BIA’s conclusion that Octavianus failed to meet his “heavy burden” of demonstrating that reopening his proceedings was appropriate. See INS v. Abudu, 485 U.S. 94, 110, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988). Octavianus filed an untimely motion to reopen his removal proceedings. See 8 C.F.R. § 1003.2(c)(2). Although the time limitation does not apply to a motion to reopen proceedings to apply for asylum based on changed country conditions, Oc-tavianus waives any challenge to the BIA’s finding that he did not establish changed country conditions.

See 8 C.F.R. § 1003.2(c)(3)(ii). Rather, in his brief, Oc-tavianus argues that his motion should have been granted based on this Court’s decision in Mufied v. Mukasey, 508 F.3d 88 (2d Cir.2007). However, as the government argues and the BIA properly determined, the regulations do not provide that an untimely motion to reopen may be excused on these grounds. See 8 C.F.R § 1003.2(c)(3). Moreover, even if such a basis did exist, Octavianus fails to challenge the BIA’s finding that the Mufied decision does not establish his prima facie eligibility for relief.

The BIA observed that Mufied was distinguishable from the present facts because the petitioner in Mu-fied was not ethnically Chinese, whereas Octavianus’s asylum application alleges that he feared persecution based primarily on his Chinese ethnicity.

Moreover, the BIA was correct in finding that while in Mufied, the Court urged the BIA to elaborate on the “systemic” and “pervasive” standard it applies in pattern or practice cases, it did “not make any determinations as to pattern or practice claims such that the respondent could obtain withholding of removal under this theory.” Therefore, the BIA did not abuse its discretion in denying Octaviarais’ motion to reopen where he failed to present a valid basis for excusing the untimeliness of that motion. See Kaur, 413 F.3d at 233. For the foregoing reasons, the petition for review is DENIED.

As we have completed our review, the pending motion for a stay of removal in this petition is DENIED as moot.