Kaur v. Attorney General of the United States ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
8-15-2005
Kaur v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-3436
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 04-3436
________________
GURMAIL KAUR,
Petitioner
v.
ATTORNEY GENERAL OF
THE UNITED STATES
____________________________________
On Petition for Review of a Decision of the
Board of Immigration Appeals
(Agency No. A70 698 232)
_______________________________________
Submitted Under Third Circuit LAR 34.1(a)
August 12, 2005
BEFORE: VAN ANTWERPEN, GREENBERG and NYGAARD, CIRCUIT JUDGES
(Filed: August 15, 2005)
_______________________
OPINION
_______________________
PER CURIAM
Gurmail Kaur, a citizen of India, petitions for review of an order of the Board of
Immigration Appeals (BIA), denying her second motion to reopen proceedings. For the
following reasons, we will deny the petition.
Kaur entered the United States without valid documents in 1992 through Mexico.
In 1998, an immigration judge found Kaur removable and denied her applications for
asylum and other relief. The BIA affirmed without opinion on June 4, 2002. Kaur did
not petition this Court to review the final order of removal. Kaur filed her first motion to
reopen proceedings in June 2003, which the BIA denied as untimely in October 2003.
We dismissed Kaur’s petition for review of that order for failure to prosecute. Kaur v.
Ashcroft, No. 03-4284 (3d Cir. Mar. 10, 2004). Kaur filed the current motion to reopen
proceedings in June 2004, which the BIA denied as untimely and exceeding the numerical
limitations. Kaur petitions for review.
We have jurisdiction to review the BIA’s order denying Kaur’s second motion to
reopen.1 We review the BIA’s denial of a motion to reopen for abuse of discretion with
“broad deference” to its decision. Ezeagwuna v. Ashcroft, 325 F.3d 396, 409 (3d Cir.
2003). Under this standard, we will reverse the BIA’s decision only if it is “arbitrary,
irrational, or contrary to law.” Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir. 2002).
The BIA in turn has broad discretion to deny a motion to reopen. See Lu v. Ashcroft, 259
F.3d 127, 131 (3d Cir. 2001). The applicable regulation provides that the BIA “has
discretion to deny a motion to reopen even if the party moving has made out a prima facie
case for relief.” 8 C.F.R. § 1003.2(a).
1
The only order currently subject to our review is the order denying Kaur’s second
motion to reopen. See Nocon v. INS, 789 F.2d 1028, 1033 (3d Cir. 1986). Thus, we
cannot consider her argument that the IJ and BIA wrongly denied her application for
asylum.
2
An alien may file only one motion to reopen, and it must be filed no later than
ninety days after the date on which the final administrative decision was rendered. See 8
C.F.R. § 1003.2(c)(2). These “time and numerical limitations” do not apply to a motion
to reopen to apply for asylum based on changed circumstances arising in the country of
removal, “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 specifically considered whether Kaur’s second motion to reopen could be heard
under this exception, but concluded that she had failed to present evidence of changed
circumstances in India to satisfy the exception.
We agree completely that Kaur’s second motion to reopen exceeded the time and
numerical limitations, and that she failed to present any evidence of changed
circumstances in India for the purpose of overcoming these limitations. In her brief, Kaur
challenges the denial of asylum and other relief, but she offers no reason to question the
BIA’s decision denying her second motion to reopen.
In sum, we find no basis to conclude that the BIA abused its discretion in denying
Kaur’s second motion to reopen. Accordingly, we will deny the petition for review.
3