Kulbhushan Kumar v. Loretta Lynch , 670 F. App'x 462 ( 2016 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 1 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KULBHUSHAN KUMAR, No. 15-73288
Petitioner, Agency No. A072-143-183
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 25, 2016**
Before: LEAVY, GRABER, and CHRISTEN, Circuit Judges.
Kulbhushan Kumar, a native and citizen of India, petitions for review of the
Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen. We
have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the
BIA’s denial of a motion to reopen, Najmabadi v. Holder, 597 F.3d 983, 986 (9th
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Cir. 2010), and we review de novo due process claims in immigration proceedings,
Zetino v. Holder, 622 F.3d 1007, 1011 (9th Cir. 2010). We deny the petition for
review.
We deny Kumar’s opposed motion to supplement the record on appeal. See
Fisher v. INS, 79 F.3d 955, 963 (9th Cir. 1996) (en banc).
The BIA did not abuse its discretion in denying Kumar’s motion to reopen
as untimely where the motion was filed over two years after the BIA’s final
order, see 8 C.F.R. § 1003.2(c)(2), and Kumar failed to demonstrate material
changed circumstances in India to qualify for a regulatory exception to the time
limitations for filing a motion to reopen, see 8 C.F.R. § 1003.2(c)(3)(ii);
Najmabadi, 597 F.3d at 991-92 (evidence must be “qualitatively different” to
warrant reopening). Kumar’s contentions that the BIA overlooked his facts and
claims are unpersuasive. See Najmabadi, 597 F.3d at 990 (BIA “does not have to
write an exegesis on every contention”).
The BIA also did not abuse its discretion in denying Kumar’s untimely
motion to reopen based on ineffective assistance of counsel, where Kumar did not
establish the due diligence required for equitable tolling of the filing deadline. See
Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir. 2011) (equitable tolling is
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available to a petitioner who is prevented from timely filing a motion to reopen due
to deception, fraud or error, as long as petitioner exercises due diligence in
discovering such circumstances).
Kumar’s contention that the BIA’s denial of his motion to reopen violated
due process is unpersuasive. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000)
(requiring error to prevail on a due process claim).
Finally, we deny Kumar’s renewed request for a stay of removal pending
review.
PETITION FOR REVIEW DENIED.
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