Gurpartap Singh v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 24, 2022
• Docket: 20-73659
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION FEB 24 2022 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS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.