Gurdeep Bala v. Jefferson Sessions

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 28, 2018
• Docket: 15-72410
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION MAR 28 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

GURDEEP SINGH BALA, No. 15-72410

Petitioner, Agency No. A096-494-564

v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted February 8, 2018** San Francisco, California

Before: TASHIMA, BERZON, and CHRISTEN, Circuit Judges.

Gurdeep Singh Bala, a native and citizen of India, petitions for review of a

final order of removal from the Board of Immigration Appeals (“BIA”), and of the

BIA’s denial of a motion to reopen proceedings. Bala sought relief on the grounds

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2)(C). that he suffered, and fears he will suffer, persecution because of his Sikh religion

and related political activities. We dismiss in part and deny in part.

1. To the extent the petition for review challenges the BIA’s original

December 22, 2010, decision denying asylum, withholding of removal and CAT

protection, it is untimely. Even though the BIA remanded proceedings to the

Immigration Judge (“IJ”) for the IJ to give appropriate voluntary departure

advisals, the BIA’s denial of relief was still a “final order of removal” for the

purposes of our review. See Pinto v. Holder, 648 F.3d 976, 980 (9th Cir. 2011).

Bala did not file his petition for review until August 4, 2015, years after the 30-day

period specified in 8 U.S.C. § 1252(b)(1) expired.

We therefore lack jurisdiction to review the BIA’s original decision and

must dismiss this portion of Bala’s petition.

2. The BIA did not abuse its discretion in denying Bala’s motion to

reopen proceedings. One basis for the BIA’s original denial of relief was Bala’s

ability to relocate elsewhere in India. Bala argued in his motion to reopen that

country conditions in India had deteriorated such that he could no longer safely

relocate. To prevail on a motion to reopen on the basis of changed country

conditions, a petitioner must submit new, material evidence that establishes prima

facie eligibility for relief. See Agonafer v. Sessions, 859 F.3d 1198, 1204 (9th Cir.

2 2017). In other words, a petitioner “who seek[s] to remand or reopen proceedings

to pursue relief bears a ‘heavy burden’ of proving that, if proceedings were

reopened, the new evidence would likely change the result in the case.” Shin v.

Mukasey, 547 F.3d 1019, 1025 (9th Cir. 2008) (quoting Matter of Coelho, 20 I. &

N. Dec. 464, 473 (BIA 1992)).

To support his motion to reopen, Bala submitted news articles about tenant

registration drives in India that require landlords to record the identity of their

tenants with local police.1 Bala argues that these registrations would allow the

Punjab police to track his whereabouts to other parts of India.2 While it is true that

the articles show efforts to register tenants, the efforts are seemingly targeted at

preventing and solving common crime. There is no evidence that police from

different Indian states use, or could use, the tenant registration data to target Sikh

political activists. Therefore, Bala’s proposed new evidence does not contradict

the evidence on which the BIA originally relied in concluding that Bala could

relocate. Because the new evidence would not change the result, the BIA did not

1 Bala also submitted new evidence that the Punjab police had recently arrested his father and asked about Bala’s whereabouts. This fact does not contradict the BIA’s conclusion that Bala could safely and reasonably relocate outside the Punjab region of India. 2 Bala’s motion to reopen also suffers from the fact that evidence of tenant registration drives was available at the time of his original hearing. 3 abuse its discretion in denying Bala’s motion to reopen proceedings. See

Agonafer, 859 F.3d at 1204 (“‘The critical question is . . . whether circumstances

have changed sufficiently that a petitioner who previously did not have a legitimate

claim’ now does.”) (quoting Malty v. Ashcroft, 381 F.3d 942, 945 (9th Cir. 2004)).

We deny this portion of Bala’s petition.

• ! •

The petition for review is

DISMISSED in part and DENIED in part.