UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 05-1107

QIAN FAN, a/k/a Kunio Otsuka, Petitioner, versus

ALBERTO R. GONZALES, Attorney General, Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. (A77-997-923)

Submitted: May 20, 2005 Decided: June 13, 2005

Before WILKINSON, NIEMEYER, and WILLIAMS, Circuit Judges.

Petition denied by unpublished per curiam opinion.

Qian Fan, Petitioner Pro Se. M. Jocelyn Lopez Wright, Assistant Director, Carol Federighi, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).

PER CURIAM: Qian Fan, a native and citizen of the People’s Republic of China, petitions for review of an order of the Board of Immigration Appeals (Board) denying Fan’s second, identical motion to reopen. We agree with the Board that the motion should be construed as Fan’s second motion to reconsider. As such, it exceeds the number limitations of 8 U.S.C. § 1229a(c)(5)(A) (2000) and 8 C.F.R. § 1003.2(b)(2) (2005). Even construing the motion as a motion to reopen, it is beyond the ninety-day deadline of 8 U.S.C. § 1229a(6)(C)(i) (2000) and 8 C.F.R. § 1003.2(c)(2) (2005).

Therefore, we conclude that the Board did not abuse its discretion in denying the motion. 8 C.F.R. § 1003.2(a) (2005); INS v. Doherty, 502 U.S. 314, 323-24 (1992); Stewart v. INS, 181 F.3d 587, 595 (4th Cir. 1999). We deny the petition for review; we dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

PETITION DENIED

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