Rajwinder Kaur v. Loretta E. Lynch , 611 F. App'x 419 ( 2015 )

FILED
NOT FOR PUBLICATION JUL 28 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAJWINDER KAUR, AKA Rajwinder No. 12-70801
Atwal,
Agency No. A075-708-722
Petitioner,
v. MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 21, 2015**
Before: CANBY, BEA, and MURGUIA, Circuit Judges.
Rajwinder Kaur, a native and citizen of India, petitions for review of the
Board of Immigration Appeals’ (“BIA”) order denying her second motion to
reopen. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of
discretion the denial of a motion to reopen, and review de novo questions of law,
*
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).
including claims of due process violations due to ineffective assistance.
Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We deny the
petition for review.
The BIA did not abuse its discretion in denying Kaur’s second motion to
reopen as time- and number-barred, where Kaur filed the motion over four years
after her order of removal became final, see 8 U.S.C. § 1229a(c)(7)(A), (C)(i)
(motion to reopen must be filed within ninety days of final order of removal), and
where Kaur has not established that she was entitled to equitable tolling of the
filing deadline due to ineffective assistance of counsel, see Avagyan v. Holder, 646
F.3d 672, 679 (9th Cir. 2011) (deadline for filing motion to reopen can be
equitably tolled “when a petitioner is prevented from filing because of deception,
fraud, or error”). Accordingly, Kaur’s claim that her right to due process was
violated when the BIA declined to reopen her case fails. See Lata v. INS, 204 F.3d
1241, 1246 (9th Cir. 2000) (requiring error and prejudice to prevail on a due
process claim).
We reject Kaur’s contention that the BIA improperly required her to “litigate
the allegations of ineffective assistance of counsel.” See Reyes v. Ashcroft, 358
F.3d 592, 598-99 (9th Cir. 2004) (discussing requirement that counsel have
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opportunity to respond to ineffective assistance claims raised in a motion to
reopen).
In her opening brief, Kaur does not address, and therefore has waived any
challenge to, the BIA’s determination that she failed to demonstrate a material
change in circumstances in India sufficient to qualify for exceptions to the filing
limitations, and to the BIA’s decision not to exercise its sua sponte authority to
reopen the proceedings. See Rizk v. Holder, 629 F.3d 1083, 1091 n.3 (9th Cir.
2011) (a petitioner waives an issue by failing to raise it in the opening brief).
PETITION FOR REVIEW DENIED.
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