Garcia-Chepe

MEMORANDUM **

Tibureio Garcia-Chepe, a native and citizen of Mexico, petitions for review of a Board of Immigration Appeals (“BIA”) order denying his motion to reopen his deportation proceedings. Reviewing for abuse of discretion, Singh v. INS, 213 F.3d 1050, 1052 (9th Cir.2000), we deny the petition for review.

Whether Garcia-Chepe’s motion was untimely depends on whether he was eligible for relief pursuant to the settlement in Barahona-Gomez v. Ashcroft, 243 F.Supp.2d 1029 (N.D.Cal.2002), which provides that “where the EOIR has not sua sponte reopened an eligible class member’s case, such individual shall be eligible to file a motion to reopen, not subject to the time or numerical limitations in 8 C.F.R. § 3.2 or 8 C.F.R. § 3.23 ... within the motion to reopen period as defined [in the settlement].” Id. at 1036 . We conclude that the BIA did not abuse its discretion in determining that Garcia-Chepe is not an *989 eligible class member, because his suspension of deportation case was not “taken under submission following a merits hearing before February 13, 1997.” Id. at 1032 ; see also Sotelo v. Gonzales, 426 F.3d 1222 (9th Cir.2005) (“to be a member of the Barahona-Gomez class…