Avtar Singh v. Jefferson Sessions, III

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 19 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
AVTAR SINGH, No. 17-70246
Petitioner, Agency No. A070-530-104
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 12, 2018**
Before: LEAVY, HAWKINS, and TALLMAN, Circuit Judges
Avtar Singh, a native and citizen of India, petitions for review of the Board
of Immigration Appeals’ (“BIA”) order denying of his motion to reopen removal
proceedings. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of
discretion the denial of a motion to reopen. Martinez-Hernandez v. Holder, 778
*
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).
F.3d 1086, 1088 (9th Cir. 2015). We review de novo claims of due process
violations. Padilla-Martinez v. Holder, 770 F.3d 825, 830 (9th Cir. 2014). We
deny the petition for review.
The BIA did not abuse its discretion in denying Singh’s motion to reopen as
untimely, where it was filed more than 90 days after his final order of removal, see
8 U.S.C. § 1229a(c)(7)(C)(i), 8 C.F.R. § 1003.2(c)(2), and he did not demonstrate
he met any exception to the filing deadline, see 8 U.S.C. § 1229a(c)(7)(C)(ii)-(iv),
8 C.F.R. § 1003.2(c)(3).
To the extent Singh contends the 90-day time limit violates due process
because it prevents him from applying for adjustment of status based on events that
occurred more than 90 days after his final order of removal, he has not shown the
deadline violates a fundamental right. See Gebhardt v. Nielsen, 879 F.3d 980, 988
(9th Cir. 2018) (the generic right to live with one’s family is “far removed” from
the specific right of United States citizens to live in the United States with non-
citizen family members; a non-citizen’s deportation does not violate the
substantive due process rights of a citizen family); Padilla-Martinez, 770 F.3d at
830 (“To prevail on a due-process claim, a petitioner must demonstrate both a
violation of rights and prejudice.”). Singh’s reliance on Kerry v. Din, 135 S. Ct.
2128 (2015), is not persuasive, where that decision does not establish an alien has a
fundamental right to remain in the United States with his family. See id. at 2131-39
2 17-70246
(determining there was no deprivation of “life, liberty, or property” in denying a
visa to a citizen’s spouse (Scalia, J., plurality opinion); even assuming a protected
liberty interest, the citizen received proper process (Kennedy, J., concurring)).
Our jurisdiction to review the BIA’s discretionary decision not to reopen
proceedings sua sponte is limited to contentions of legal or constitutional error. See
Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016). The BIA applied the correct
“exceptional circumstances” standard, and Singh has not shown that the BIA failed
to follow controlling law.
PETITION FOR REVIEW DENIED.
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