Dhillon v. Attorney General of the United States

335 F. App'x 262
CourtCourt of Appeals for the Third Circuit
DecidedJuly 7, 2009
DocketNo. 08-4497
StatusPublished
Cited by1 cases

This text of 335 F. App'x 262 (Dhillon v. Attorney General of the United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dhillon v. Attorney General of the United States, 335 F. App'x 262 (3d Cir. 2009).

Opinion

OPINION

PER CURIAM.

Petitioner Baljinder Kaur Dhillon, a native and citizen of India, entered the United States without inspection on September 30, 1996. She is removable under former Immigration & Nationality Act (“INA”) § 241(a)(1)(B) for having entered without inspection.1 Dhillon applied for asylum and statutory withholding of removal, and her merits hearing was continued on several occasions. Finally, on December 20, 1999, the hearing took place. Dhillon claimed that she was detained by government authorities because of her brother’s Sikh activism, and, while in detention on one occasion, brutally raped. The IJ admitted documentary evidence, including a United States Department of State report on country conditions in India, and Dhillon’s general documentary [264]*264evidence on the treatment of Sikhs in the Punjab region. At the merits hearing in 1999, Dhillon’s counsel stated that she was seeking asylum, withholding of deportation under the INA, and protection under the Convention Against Torture. A.R. 124-25. These applications were denied. The IJ did not find Dhillon’s testimony credible and faulted her for failing to corroborate her testimony with respect to her brother’s political activities. Dhillon’s application for voluntary departure was granted, and, in the alternative, she was ordered removed to India. The Board of Immigration Appeals dismissed her appeal on March 29, 2002, and gave her thirty days to voluntarily depart. Dhillon did not petition for review of this decision.

On July 1, 2008, six years later, Dhillon filed a motion to reopen with the Board “for the following reasons: changed circumstances which form the basis of the attached 1589 and her ability to adjust based on her approved and current 1-130.” A.R. 11. Dhillon married a legal permanent resident in November of 1999. The couple have two United States citizen children. Dhillon stated in her motion to reopen that her husband, Manpreet Singh, filed a relative petition on her behalf prior to the sunset date of INA § 245(i), April 30, 2001. See 8 U.S.C. § 1255. In addition, her husband previously was granted asylum as a persecuted former member of the All India Sikh Students Federation. Dhillon contended that she is thus now a member of a particular social group entitled to protection, that is, a visible family member of an asylee. In support of her assertion of a well-founded fear of persecution, Dhillon submitted some country conditions evidence with her motion to reopen.

On October 23, 2008, the Board of Immigration Appeals denied the motion to reopen as untimely because it was not filed within the required 90 days, see 8 C.F.R. § 1003.2(e)(2). The Board considered whether the changed country conditions exception to the timeliness requirement applied in Dhillon’s case, id. at 1003.2(c)(3)(h), and concluded that it did not because she failed to show materially changed conditions in India relevant to either her previous or new claims regarding asylum, 8 U.S.C. § 1158(a), and statutory withholding of removal, 8 U.S.C. § 1231(b)(3). In addition, the Board concluded that Dhillon had failed to make a prima facie showing that she would more likely than not be tortured by or with the acquiescence or willful blindness of Indian authorities so as to warrant reopening for consideration of a new claim to protection under the CAT.

Turning to her adjustment of status argument, but including also Dhillon’s other requests for relief as they might present an equitable exception to the timeliness rule, the Board declined to exercise its sua sponte authority to reopen proceedings, 8 C.F.R. § 1003.2(a). In pertinent part, the Board concluded that Dhillon had not been diligent in pursuing legal status insofar as she waited until 2008 to seek reopening on the basis of a 1999 marriage and 2001 visa petition. In addition, the Department of Homeland Security had not joined in the motion to reopen. The Board faulted Dhillon for, among other things, failing to voluntarily depart when she was required to, and failing to exercise diligence in pursuing lawful status, waiting until 2008 to pursue a motion to reopen based on a 1999 marriage.

Dhillon has timely petitioned for review. We previously denied her motion for a stay of removal. Our review is limited to the Board’s October 23, 2008 decision denying the motion to reopen, 8 U.S.C. § 1252(a)(1). See also Cruz v. Att’y Gen. of U.S., 452 F.3d 240, 246 (3d Cir.2006) (denial of motion to reopen is itself a final [265]*265order of removal). We lack jurisdiction to review the Board’s March 29, 2002 decision dismissing her appeal of the IJ’s denial of her application for asylum, statutory withholding of removal and CAT protection, because she did not timely file a petition for review of this decision, see IIRIRA § 309(c)(4)(C) (transitional rules provide for thirty day deadline to file petition for review).

We review the Board’s denial of a motion to reopen for abuse of discretion only. Immigration & Naturalization Serv. v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992). Under this standard, we will reverse only if the Board’s decision is arbitrary, irrational, or contrary to law. Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir.2002). The Board’s jurisdiction ai’ose under 8 C.F.R. § 1003.2(a), which grants it jurisdiction to adjudicate motions regarding matters which it has previously considered. The decision whether to grant a timely motion to reopen is committed to the Board’s discretion. Id. Such motions generally shall be filed within 90 days of the order sought to be reopened. Id. at § 1003.2(e)(2)-(3). Dhillon’s motion to reopen was late by many years. This undisputed fact brings to an end our consideration of the changed circumstances and adjustment of status issues raised in her motion unless she can establish that an exception to the timeliness rule applies.

One such exception pertinent to Dhil-lon’s case provides that an alien may reapply for asylum or statutory withholding of removal based on changed circumstances in the alien’s home country. Pursuant to 8 C.F.R. § 1003.2(c)(3)(h), the time and number limitations on motions to reopen do not apply where the applicant seeks to apply for asylum “based on changed circumstances arising in the country of nationality or in the country to which deportation has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the previous hearing.”

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335 F. App'x 262, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dhillon-v-attorney-general-of-the-united-states-ca3-2009.