Gurpartap Singh v. Merrick Garland

FILED
NOT FOR PUBLICATION
FEB 24 2022
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GURPARTAP SINGH, No. 20-73659
Petitioner, Agency No. A200-943-733
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 7, 2022**
Seattle, Washington
Before: BYBEE and CHRISTEN, Circuit Judges, and SELNA,*** District Judge.
Gurpartap Singh, a native and citizen of India, petitions for a review of the
*
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 James V. Selna, United States District Judge for the
Central District of California, sitting by designation.
Board of Immigration Appeals’ (BIA) order denying his motion to reopen removal
proceedings. This court previously denied review of the BIA’s decision affirming
an immigration judge’s denial of Singh’s original application in which he applied
for asylum, withholding of removal, and relief under the Convention Against
Torture (CAT). Singh v. Whitaker, 750 F. App’x 574 (9th Cir. 2019). Singh seeks
reopening so that he may file a new application for these same three forms of relief
based upon what he contends are new circumstances giving rise to a credible fear
of future persecution. We deny Singh’s petition for review.1
We have jurisdiction to review an appeal from the BIA’s denial of a motion
to reopen pursuant to 8 U.S.C. § 1252. Mata v. Lynch, 576 U.S. 143, 147–48
(2015). We review such denials for abuse of discretion. INS v. Doherty, 502 U.S.
314, 323 (1992). “This Court defers to the Board’s exercise of discretion unless it
acted arbitrarily, irrationally or contrary to law.” Toufighi v. Mukasey, 538 F.3d
988, 992 (9th Cir. 2008) (citations omitted). The BIA’s determinations of purely
legal questions are reviewed de novo, and its factual findings are reviewed for
substantial evidence. Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010).
“[O]ur review is limited to the actual grounds relied upon by the BIA.” Id.1
Because the parties are familiar with the facts and procedural history, we
do not recount them here.
2
(quoting Ramirez-Altamirano v. Holder, 563 F.3d 800, 804 (9th Cir. 2009),
overruled on other grounds by Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir.
2011)).
A motion to reopen is generally precluded if it is filed more than ninety days
after the final administrative decision is rendered. 8 U.S.C. § 1229a(c)(7)(C)(i); 8
C.F.R. § 1003.2(c)(2). There is an exception to this time-bar for applicants who
produce previously unavailable evidence of materially changed country conditions
that would, when considered together with the applicant’s prior evidence, establish
prima facie eligibility for the relief sought. Toufighi, 538 F.3d at 993–94; see also
Go v. Holder, 744 F.3d 604, 609 (9th Cir. 2014) (exception available for CAT
claims in addition to asylum and withholding claims). “[T]he changed country
conditions exception is concerned with two points in time: the circumstances of the
country at the time of the petitioner’s previous hearing, and those at the time of the
motion to reopen.” Salim v. Lynch, 831 F.3d 1133, 1137 (9th Cir. 2016). In order
to qualify for the exception, “the evidence submitted with the motion to reopen
must be ‘qualitatively different from the evidence presented at [the] asylum
hearing.’” Id. (alteration in original) (quoting Malty v. Ashcroft, 381 F.3d 942, 945
(9th Cir. 2004)).
3
Because Singh’s motion to reopen was untimely, he sought to avail himself
of this exception by submitting evidence with his motion that, he claimed,
demonstrated materially changed country conditions. The BIA rejected Singh’s
claims, instead concluding that his new allegations merely reflected a continuation
of the same conditions he had alleged during his hearing before the immigration
judge.
The BIA did not err in determining that Singh failed to establish materially
changed country conditions to qualify for the exception. Singh included two
generalized country reports with his motion to reopen that he asserted
demonstrated deteriorating conditions in India. Yet Singh had introduced
extensive documentary evidence reflecting the same kinds of intolerance for
religious and political minorities, corruption, and violence during his hearing
before the immigration judge. See Najmabadi, 597 F.3d at 989–90 (requiring
“individualized relevancy” rather than evidence that “simply recounts generalized
conditions” and noting new country conditions reports were too similar to those
submitted previously to constitute evidence of material changes). Additionally,
while Singh included several affidavits with his motion to reopen containing
allegations of new police threats against his life and violence towards his family in
India, he had also proffered similar evidence during his hearing before the
4
immigration judge. Thus, the BIA properly concluded that Singh’s new evidence
failed to establish qualitative changes in country conditions.
Because we hold the BIA properly determined that Singh failed to
demonstrate material changes in country conditions, we do not address additional
grounds offered by the BIA for its denial of Singh’s untimely motion.
PETITION FOR REVIEW DENIED.
5