Kewal Singh v. Eric Holder, Jr. ( 2013 )

FILED
NOT FOR PUBLICATION JUN 20 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
KEWAL SINGH, No. 11-73540
Petitioner, Agency No. A071-788-881
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 18, 2013 **
Before: TALLMAN, M. SMITH, and HURWITZ, Circuit Judges.
Kewal Singh, a native and citizen of India, petitions for review of the Board
of Immigration Appeals’ (“BIA”) order denying his motion to reopen removal
proceedings based on changed country conditions and ineffective assistance of
counsel. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of
*
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).
discretion the denial of a motion to reopen. Avagyan v. Holder, 646 F.3d 672, 674
(9th Cir. 2011). We deny in part and dismiss in part the petition for review.
The BIA did not abuse its discretion in denying Singh’s motion to reopen as
untimely where the motion was filed more than five years after his removal order
became final, see 8 C.F.R. § 1003.2(c)(2), and Singh failed to demonstrate a
material change in circumstances in India to qualify for the regulatory exception to
the filing deadline, see 8 C.F.R. § 1003.2(c)(3)(ii).
In his opening brief, Singh fails to raise, and therefore has waived, any
challenge to the BIA’s determination that he failed to demonstrate the due
diligence required for equitable tolling of the filing deadline based on the alleged
ineffective assistance of prior counsel. See Rizk v. Holder, 629 F.3d 1083, 1091
n. 3 (9th Cir. 2011) (issues not raised in a petitioner’s opening brief are deemed
waived. In light of this disposition, we do not reach Singh’s other contentions
regarding the ineffective assistance of prior counsel.
We lack jurisdiction to review Singh’s challenges to the agency’s underlying
order denying relief under the Convention Against Torture because the petition for
review is not timely as to that order. See Singh v. INS, 315 F.3d 1186, 1188 (9th
Cir. 2003).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
2 11-73540