Singh v. Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 25 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RUPINDER SINGH, No. 22-2
Petitioner, Agency No. A088-394-576
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 29, 2023**
San Francisco, California
Before: BOGGS, *** M. SMITH, and OWENS, Circuit Judges.
Rupinder Singh, a native and citizen of India, petitions this court for review
of the Board of Immigration Appeals’ (BIA) denial of his fifth motion to reopen his
*
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 Danny J. Boggs, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
2013 final order of removal. This is Singh’s fourth petition for review in this matter.
We have jurisdiction under 8 U.S.C. § 1252 and deny the petition.
Singh entered the United States in 2009 on a B-2 visitor visa. In 2011, an
immigration judge (IJ) denied Singh’s applications for asylum and withholding of
removal based on an adverse credibility finding and ordered Singh removed. The
BIA dismissed his appeal in 2013 and this court affirmed. Singh v. Holder, 591 F.
App’x 546 (9th Cir. 2015). Applying the standards governing adverse credibility
determinations created by the REAL ID Act, see Shrestha v. Holder, 590 F.3d 1034,
1039-40 (9th Cir. 2010), we held that substantial evidence supported the BIA’s
adverse credibility determination based on Singh’s testimony. Ibid.Singh now petitions this court for review of the BIA’s 2021 denial of his fifth
motion to reopen, which this court reviews under a deferential abuse-of-discretion
standard. 1 Martinez v. Barr, 941 F.3d 907, 921 (9th Cir. 2019). The BIA abuses its
discretion if the decision is arbitrary, irrational, or contrary to law. Perez v. Mukasey,
516 F.3d 770, 773 (9th Cir. 2008) (citation omitted). With certain exceptions, a
motion to reopen must be filed within 90 days of the final administrative order. 8
U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). But there is no time limit when
1
We need not address Singh’s contention that he made a prima facie case for asylum
because the BIA made no finding on the issue. See Andia v. Ashcroft, 359 F.3d
1181, 1184 (9th Cir. 2004) (per curiam) (“In reviewing the decision of the BIA, we
consider only the grounds relied upon by that agency.”).
2
filing an asylum or withholding-of-removal application based on changed country
conditions if such evidence is material, was not available, and would not have been
discovered previously. 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(1).
The BIA did not abuse its discretion when it found that Singh, who submitted
only his declaration and the State Department’s 2018 Human Rights Report for
India, failed to provide evidence of changed country conditions in India between the
time of his removal hearing (2011) and the time that he filed this most recent (fifth)
motion to reopen (2020).2 Nor was his declaration claiming that, in 2019, the police
again went to his house looking for him and either beat or detained a family member
qualitatively different from evidence presented at his removal hearing; instead it
represents a continuation of past circumstances. See Rodriguez v. Garland, 990 F.3d
1205, 1210 (9th Cir. 2021). And changed personal circumstances are relevant only
to the extent that they help “establish the materiality” of the evidence of changed
country conditions, which was not demonstrated here. Ibid.In any event, Singh has failed to address the original IJ finding that his
testimony was not credible. The IJ found that Singh’s testimony that he suffered
police retribution because he was a whistleblower as to governmental corruption was
2
Singh raises a new claim of asylum based on imputed political opinion, which he
did not explicitly raise in his motion to reopen before the BIA. Because that claim
is unexhausted, we lack jurisdiction to review. See Bare v. Barr, 975 F.3d 952, 960
(9th Cir. 2020) (“Exhaustion requires a non-constitutional legal claim to the court
on appeal to have first been raised in the administrative proceedings below.”).
3
implausible, appeared to be fabricated, and made it just as probable that he was
arrested by the police for being a participant in that suspected corruption. Because
Singh’s motion to reopen fails to rehabilitate the IJ’s finding that his testimony
regarding the nexus requirement was not credible or show a new claim independent
of the evidence found not credible, the BIA did not abuse its discretion. See
Greenwood v. Garland, 36 F.4th 1232, 1236 (9th Cir. 2022) (holding that the BIA
can “reject a motion to reopen by relying on a previous adverse credibility
determination if that earlier finding factually undermines the petitioner's new
claim.”).
The petition for review is DENIED.
4