SHUN GUAN CHEN, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent, 375 F. App'x 107

SUMMARY ORDER Petitioner, Shun Guan Chen, a native and citizen of the People’s Republic of China, seeks review of a January 30, 2009, order of the BIA denying his third motion to reopen. In re Shun Guan Chen, No. [ A XXX XXX XXX ], (B.I.A. Jan. 30, 2009). 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. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006).

An alien may only file one motion to reopen and must do so within 90 days of the agency’s final administrative decision. 8 C.F.R. § 1003.2(c)(2). However, the time and number limitations do not apply to a motion to reopen that is “based on changed circumstances arising in the country of nationality or in the country to which deportation has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii). Here, the BIA did not abuse its discretion in denying Chen’s untimely and number-barred motion to reopen.

As the BIA ruled, adjustment of status is not an exception to the applicable time limitation on motions to reopen. See 8 U.S.C. § 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c)(3)(ii); see also Matter of Yauri, 25 I. & N. Dec. 103, 105 (BIA 2009) (emphasizing “that untimely motions to reopen to pursue an application for adjustment of status ... do not fall within any of the statutory or regulatory exceptions to the time limits for motions to reopen before the Board”).

In any event, as the BIA also found, Chen did not submit an application for adjustment of status with his motion, as he was required to do. 8 C.F.R. § 1003.2(c)(1) (“A motion to reopen proceedings for the purpose of submitting an application for relief must be accompanied by the appropriate application for relief and all supporting documentation”). The BIA also did not abuse its discretion in declining to reopen Chen’s proceedings in order to consider his eligibility for CAT relief.

As the BIA found, he failed to present “any new, previously unavailable evidence demonstrating changed country conditions in China” sufficient to excuse his untimely filing. See 8 C.F.R. § 1003.2(c)(3)(ii). Chen submitted: (1) his own affidavit; and (2) a letter regarding his pending 1-130 Form from the National Visa Center; but neither the affidavit nor the letter discuss country conditions in China. For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any pending motion for a stay of removal in this petition is DISMISSED as moot.

Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b). . Chen argues that he established his eligibility to apply for adjustment because he submitted a Notice of Action form indicating that his visa petition had been approved; however, that form specifically noted that Chen was not eligible to apply for adjustment of status.