Davinder Kaur v. Loretta E. Lynch , 616 F. App'x 280 ( 2015 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
SEP 08 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
DAVINDER KAUR, No. 11-71886
Petitioner, Agency No. A070-916-854
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 3, 2015**
Pasadena, California
Before: GRABER and WATFORD, Circuit Judges, and TUNHEIM,*** Chief
District Judge.
Davinder Kaur, a native and citizen of India, petitions for review of the
Board of Immigration Appeals’ (“BIA”) order denying her motion to reopen based
*
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).
***
The Honorable John R. Tunheim, Chief District Judge for the U.S.
District Court for the District of Minnesota, sitting by designation.
on ineffective assistance of counsel and changed circumstances. We have
jurisdiction under 8 U.S.C. § 1252(a)(2)(D). We review for abuse of discretion the
denial of a motion to reopen. Avagyan v. Holder, 646 F.3d 672, 674 (9th Cir.
2011). We deny the petition for review.
The BIA did not abuse its discretion in denying Kaur’s motion to reopen
where she filed the motion more than six years after her removal order became
final, see 8 C.F.R. § 1003.2(c)(2), and she failed to establish the due diligence
required to warrant equitable tolling of the filing deadline, see Avagyan, 646 F.3d
at 679 (equitable tolling is available to a petitioner who is prevented from filing
because of deception, fraud, or error; and who exercised due diligence in
discovering such circumstances). A reasonable person in Kaur’s position would
have become suspicious of her attorney’s behavior well before six years had
expired, yet Kaur offers no evidence that she took any action to investigate her
attorney’s conduct or the status of her case. See id. (beginning the due diligence
analysis by asking “if (and when) a reasonable person in petitioner’s position
would suspect” fraud or error on the part of her attorney); see also Singh v.
Gonzales, 491 F.3d 1090, 1096-97 (9th Cir. 2007) (contrasting cases in which a
petitioner took action quickly after becoming suspicious of the attorney’s conduct
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with cases in which the petitioner waited months to take action after becoming
suspicious).
The BIA also did not abuse its discretion in rejecting Kaur’s argument that
changed circumstances warrant reopening her case. See 8 C.F.R. § 1003.2(c)(3)(ii)
(stating that the “time and numerical limitations” on filing motions to reopen “shall
not apply to a motion to reopen proceedings . . . [t]o apply or reapply for asylum or
withholding of deportation based on changed circumstances arising in the country
of nationality or in the country to which deportation has been ordered, if such
evidence is material and was not available and could not have been discovered or
presented at the previous hearing”). When considering a motion to reopen
claiming changed circumstances, “[t]he critical question is . . . whether
circumstances have changed sufficiently that a petitioner who previously did not
have a legitimate claim for asylum now has a well-founded fear of future
persecution.” Malty v. Ashcroft, 381 F.3d 942, 945 (9th Cir. 2004). Kaur has not
shown that the BIA abused its discretion when it concluded that, although she has
alleged a change in her personal circumstances (i.e., her 2004 marriage to Darshan
Singh Sran, a permanent resident who was granted asylum), she has not alleged a
change in circumstances in her home country. Her reliance on appeal on language
from a different regulation to debate the definition of “changed circumstances,” 8
3
C.F.R. § 1208.4(a)(4)(I), also does not compel us to conclude that the BIA abused
its considerable discretion.
PETITION FOR REVIEW DENIED.
4