Kamaldeep Sandhu v. Jefferson Sessions , 677 F. App'x 437 ( 2017 )

FILED
NOT FOR PUBLICATION MAR 14 2017
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KAMALDEEP KAUR SANDHU, No. 15-73032
Petitioner, Agency No. A075-695-238
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 8, 2017**
Before: LEAVY, W. FLETCHER, and OWENS, Circuit Judges.
Kamaldeep Kaur Sandhu, a native and citizen of India, petitions for review
of the Board of Immigration Appeals’ (“BIA”) order denying her motion to reopen
removal proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. We review
for abuse of discretion the denial of a motion to reopen. Lin v. Holder, 588 F.3d
*
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).
981, 984 (9th Cir. 2009). We deny in part and dismiss in part the petition for
review.
The BIA did not abuse its discretion in denying Sandhu’s motion to reopen
as untimely, where the motion was filed eight years after her final order of
removal, see 8 C.F.R. § 1003.2(c)(2), and she did not demonstrate the due
diligence necessary for equitable tolling of the filing deadline, see Avagyan v.
Holder, 646 F.3d 672, 679 (9th Cir. 2011) (equitable tolling is available to an alien
who is prevented from filing a motion to reopen due to deception, fraud, or error,
as long as the alien exercises due diligence in discovering such circumstances).
Sandhu’s contentions regarding Toor v. Lynch, 789 F.3d 1055 (9th Cir. 2015), are
unavailing.
We reject Sandhu’s contentions that the BIA failed to consider evidence and
arguments presented in her motion, or insufficiently explained its decision. See
Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010) (the agency must “merely
. . . announce its decision in terms sufficient to enable a reviewing court to perceive
that it has heard and thought and not merely reacted” (citation and quotation marks
omitted)).
We do not consider the new evidence referenced in Sandhu’s opening brief
regarding a FOIA request. See 8 U.S.C. § 1252(b)(4)(A) (judicial review is limited
2 15-73032
to the administrative record); Dent v. Holder, 627 F.3d 365, 371 (9th Cir. 2010)
(stating standard for review of out-of-record evidence).
We lack jurisdiction to review the BIA’s discretionary decision not to reopen
proceedings sua sponte. See Mejia-Hernandez v. Holder, 633 F.3d 818, 823-24
(9th Cir. 2011); cf. Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016) (“[T]his
court has jurisdiction to review Board decisions denying sua sponte reopening for
the limited purpose of reviewing the reasoning behind the decisions for legal or
constitutional error.”). Sandhu has waived her contention that the BIA failed to
address her contention that a change in law warranted sua sponte reopening. See
Rizk v. Holder, 629 F.3d 1083, 1091 n.3 (9th Cir. 2011) (issues not raised in an
opening brief are waived).
In light of our disposition, we do not reach Sandhu’s remaining contentions
regarding the alleged ineffective assistance of prior counsel, her compliance with
requirements of Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), or her
eligibility for relief.
PETITION FOR REVIEW DENIED in part, DISMISSED in part.
3 15-73032