Simran Kaur v. Eric Holder, Jr. , 594 F. App'x 410 ( 2015 )

FILED
NOT FOR PUBLICATION FEB 27 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SIMRAN KAUR, No. 10-70885
Petitioner, Agency No. A075-020-356
v.
ERIC H. HOLDER, Jr., Attorney General, MEMORANDUM*
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 17, 2015**
Before: O’SCANNLAIN, LEAVY, and FERNANDEZ, Circuit Judges.
Simran Kaur, a native and citizen of India, petitions for review of the Board
of Immigration Appeals’ (“BIA”) order dismissing her appeal from an immigration
judge’s (“IJ”) order denying her motion to reopen deportation proceedings
conducted in absentia. We have jurisdiction under 8 U.S.C. § 1252. We review
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
for abuse of discretion the denial of a motion to reopen, and review de novo
questions of law. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005).
We deny the petition for review.
The agency did not abuse its discretion in denying Kaur’s motion as
untimely, where she filed the motion more than nine years after her order of
deportation became administratively final, see 8 C.F.R. § 1003.23(b)(1) (a motion
to reopen deportation or exclusion proceedings must be filed no later than 90 days
after a final order), and she failed to establish that she was entitled to equitable
tolling of the filing deadline, see Avagyan v. Holder, 646 F.3d 672, 679-80 (9th
Cir. 2011) (equitable tolling is available to an alien who is prevented from timely
filing a motion to reopen due to deception, fraud or error).
Contrary to Kaur’s contention, the BIA did not engage in improper fact-
finding by noting that Kaur had not satisfied the regulatory requirement of
submitting an affidavit with her motion to reopen and therefore had not established
the facts alleged in her motion. See 8 C.F.R. § 1003.23(b)(3) (“A motion to reopen
proceedings . . . shall be supported by affidavits and other evidentiary material.”).
Finally, any legal error committed by the IJ in citing the wrong regulation
was corrected by the BIA on appeal. Brezilien v. Holder, 569 F.3d 403, 411 (9th
Cir. 2009) (“Where the BIA conducts a de novo review, any error committed by
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the IJ will be rendered harmless by the Board’s application of the correct legal
standard.” (citation and internal quotation marks omitted)).
PETITION FOR REVIEW DENIED.
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