Kaur v. Holder , 482 F. App'x 370 ( 2012 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT September 10, 2012
Elisabeth A. Shumaker
Clerk of Court
KULWINDER KAUR; MANRAJ
SINGH,
Petitioners,
v. No. 11-9544
(Petition for Review)
ERIC H. HOLDER, JR., United States
Attorney General,
Respondent.
ORDER AND JUDGMENT*
Before HARTZ, ANDERSON, and EBEL, Circuit Judges.
Petitioners Kulwinder Kaur and Manraj Singh, natives and citizens of India,
seek review of an order of the Board of Immigration Appeals (BIA) denying as
untimely their motion to reopen. Exercising our jurisdiction under 8 U.S.C. § 1252,
we affirm.
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
I. Background
According to different statements by Kulwinder, she entered the United States
without inspection in either September 1999 or April 2000. Her minor son, Manraj,
entered in September 2000. Kulwinder filed an application for asylum relief on
behalf of herself and Manraj in February 2001, alleging persecution by the Indian
government based on participation by her putative husband, Balbir Singh, in the Sikh
Student Federation. Petitioners’ request for asylum and withholding of removal was
denied by an immigration judge (IJ) in January 2002, and affirmed by the BIA on
appeal in August 2003. Petitioners did not seek judicial review of the BIA’s final
order of removal.
In May 2011, eight years after the BIA issued its final order of removal,
Petitioners filed a motion to reopen in order to pursue an application for adjustment
of status. The motion asserted that Kulwinder is married to Mohinder Singh Sandhu,
now a naturalized citizen, who had filed an I-130 visa petition on her behalf in
August 2002, when he was a lawful permanent resident. The motion also stated that
Manraj was the son of Kulwinder and Mohinder. Manraj sought to be excused from
the time limitation on a motion to reopen because he is a minor. And Kulwinder
asked the BIA to exercise its discretion to reopen the removal proceeding sua sponte
“to keep her family together.” R. at 23. On July 25, 2011, the BIA denied as
untimely the motion to reopen.
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II. Discussion
We have jurisdiction to review the BIA’s discretionary decision to deny
Petitioners’ motion to reopen their removal proceedings. See Infanzon v. Ashcroft,
386 F.3d 1359, 1361–62 (10th Cir. 2004); see also Kucana v. Holder, 130 S. Ct. 827,
835, 838 (2010) (because the BIA’s “discretionary authority to act on a motion to
reopen . . . is specified not in a statute, but only in the Attorney General’s
regulation,” the jurisdiction-stripping provision in 8 U.S.C. § 1252(a)(2)(B)(ii) “does
not proscribe judicial review of denials of motions to reopen”) (internal quotation
marks omitted). We review for an abuse of discretion. See Infanzon, 386 F.3d at
1362. “The BIA abuses its discretion when its decision provides no rational
explanation, inexplicably departs from established policies, is devoid of any
reasoning, or contains only summary or conclusory statements.” Id. (internal
quotation marks omitted). “On the other hand, there is no abuse of discretion when
although the BIA’s decision is succinct, its rationale is clear, there is no departure
from established policies, and its statements are a correct interpretation of the law.”
Galvez Pineda v. Gonzales, 427 F.3d 833, 838 (10th Cir. 2005) (internal quotation
marks omitted).
Generally, an alien is limited to only one motion to reopen removal
proceedings, and it must be filed within 90 days of the date of entry of the final order
of removal. See 8 U.S.C. § 1229a(c)(7)(A)-(C)(i); 8 C.F.R. § 1003.2(c)(2). Because
Petitioners filed their motion to reopen eight years after the final administrative
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decision in their removal proceedings, their motion is untimely.1 Further, “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 [BIA] and will ordinarily be denied.”2 In re Yauri, 25 I. & N.
Dec. 103, 105 (BIA 2009). The BIA’s brief order adequately and soundly explained
its denial of Petitioners’ motion. We perceive no abuse of discretion.3
III. Conclusion
The petition for review is DENIED.
Entered for the Court
Harris L Hartz
Circuit Judge
1
The 90-day filing deadline is subject to several exceptions. See 8 C.F.R.
§ 1003.2(c)(3)(i)-(iv). We agree with the BIA’s conclusion that none of the
exceptions is applicable in this case. Although the time limitation may also be
equitably tolled when the motion to reopen is based on a claim of ineffective
assistance of counsel, see Riley v. I.N.S., 310 F.3d 1253, 1257-58 (10th Cir. 2002),
Petitioners’ motion to reopen did not make any such claim.
2
“The only applications for adjustment of status that are specifically excepted
from the motion time limits are those that involve a self-petition by a battered spouse,
child, or parent of a United States citizen or lawful permanent resident.” In re Yauri,
25 I. & N. Dec. at 105.
3
Petitioners do not argue that the BIA erred in not reopening the removal
proceedings sua sponte. See 8 C.F.R. § 1003.2(a) (stating BIA’s authority to reopen
a case at any time on its own motion). In any event, we would lack jurisdiction to
consider such an argument. See Belay-Gebru v. I.N.S., 327 F.3d 998, 1000-01
(10th Cir. 2003).
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