Kulvinder Singh v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 19 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KULVINDER SINGH, No. 18-70226
Petitioner, Agency No. A075-245-991
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 11, 2022**
San Francisco, California
Before: SILER,*** M. SMITH, and BRESS, Circuit Judges.
Kulvinder Singh petitions for review of the Board of Immigration Appeals’
(BIA) denial of his motion to reopen his immigration proceedings based on changed
*
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).
***
The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
country conditions. Singh was last before an immigration judge (IJ) in 2004 for a
hearing in which Singh had sought adjustment of status. The IJ denied his
application and ordered him removed to India. In 2017, Singh filed the present
motion to reopen, alleging changed circumstances in India regarding the treatment
of Sikhs who advocate for an independent Sikh state, Khalistan. He offered evidence
that he was affiliated with the Shiromani Akali Dal Amritsar, a pro-Khalistan
political party, and argued that, as a result, he would be persecuted or tortured if
removed to India. Because the BIA did not abuse its discretion when it found that
Singh failed to show a material change in country conditions, we DENY the petition.
We review the BIA’s denial of a motion to reopen for abuse of discretion, and
maty grant relief if the agency “acts arbitrarily, irrationally, or contrary to the law,
and when it fails to provide a reasoned explanation for its actions.” Hernandez-
Galand v. Garland, 996 F.3d 1030, 1034 (9th Cir. 2021). We review any factual
findings for substantial evidence, leaving them undisturbed “unless any reasonable
adjudicator would be compelled to conclude to the contrary.”
8 U.S.C. § 1252(b)(4)(B).
A motion to reopen to apply for asylum, withholding of removal, and/or
protection under the Convention Against Torture, based on changed country
conditions that could not have been discovered or presented at the prior hearing, may
be filed at any time. Agonafer v. Sessions, 859 F.3d 1198, 1203-04 (9th Cir. 2017).
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Therefore, Singh’s motion is timely, and we must review the BIA’s denial of that
motion on the merits.
Substantial evidence supports the BIA’s conclusion that Singh failed to
demonstrate a material change in conditions in India. A petitioner seeking to reopen
his case based on changed country conditions must demonstrate that circumstances
have sufficiently changed from the time of his previous hearing to those at the time
of the motion to reopen such that he now has a legitimate claim for relief. Rodriguez
v. Garland, 990 F.3d 1205, 1208 (9th Cir. 2021). The newly submitted evidence
may not simply recount previous conditions—rather, it must be “qualitatively
different” from the evidence available at the former hearing. Najmabadi v. Holder,
597 F.3d 983, 987 (9th Cir. 2010).
Here, country conditions evidence pre-dating Singh’s 2004 proceeding
indicates that Indian authorities, in their efforts to suppress extremist violence, have
targeted primarily Khalistan supporters whom they considered terrorists. The
evidence Singh included with his 2017 motion reveals similar circumstances. For
instance, the 2015 Immigration and Refugee Board of Canada Report explains that
Sikhs suspected of being militant sympathizers are “subject to monitoring and in
some cases, detention and torture.” Thus, substantial evidence supports the BIA’s
conclusion that the 2017 evidence merely “reflects a continuation of an ongoing
struggle” that predates Singh’s 2004 hearing.
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Nevertheless, Singh argues that the BIA should have considered his new
political involvement in the Shiromani Akali Dal Amritsar as a “qualitative
difference.” But changed personal circumstances—absent a showing of changed
country conditions—cannot serve as basis for reopening. Chandra v. Holder, 751
F.3d 1034, 1037-38 (9th Cir. 2014).
We accordingly DENY the petition.
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