Kulwant Singh v. Jefferson Sessions

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 21 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

KULWANT SINGH; et al., No. 12-73731

Petitioners, Agency Nos. A070-669-363 A070-669-364 v. A070-669-365

JEFFERSON B. SESSIONS III, Attorney General, MEMORANDUM*

Respondent.

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

Submitted May 15, 2018**

Before: SILVERMAN, BEA, and WATFORD, Circuit Judges.

Kulwant Singh and her family, natives and citizens of India, petition for

review of the Board of Immigration Appeals’ (“BIA”) order denying their motion

to reopen removal proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252.

We review for abuse of discretion the denial of a motion to reopen. Najmabadi v.

* 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). Holder, 597 F.3d 983, 986 (9th Cir. 2010). We deny in part and dismiss in part the

petition for review.

The BIA did not abuse its discretion in denying petitioners’ second motion

to reopen as untimely and number-barred where the motion was filed more than

eight years after the BIA’s final order, see 8 C.F.R. § 1003.2(c)(2), and where

petitioners failed to establish a material change in country conditions in India to

qualify for the regulatory exception to the time and number limitations for filing a

motion to reopen, see 8 C.F.R. § 1003.2(c)(3)(ii); Najmabadi, 597 F.3d at 987-90

(petitioner failed to show evidence was “qualitatively different” to warrant

reopening); see also Go v. Holder, 744 F.3d 604, 609 (9th Cir. 2014) (holding that

“the procedural requirements specified in 8 C.F.R. § 1003.2(c) apply to CAT

claims”).

We reject petitioners’ contentions that the BIA failed to consider their

motion to reopen or their evidence. See Najmabadi, 597 F.3d at 990-91 (finding

the BIA adequately considered petitioner’s evidence and sufficiently announced its

decision)

To the extent that petitioners challenge the agency’s discretionary decision

not to reopen proceedings sua sponte, we lack jurisdiction to review that

discretionary decision, where petitioners fail to raise a colorable constitutional

claim or question of law about the sua sponte determination that would invoke our

2 12-73731 jurisdiction. See Go, 744 F.3d at 609-10; cf. Bonilla v. Lynch, 840 F.3d 575, 588

(9th Cir. 2016) (“[T]his court has jurisdiction to review Board decisions denying

sua sponte reopening for the limited purpose of reviewing the reasoning behind the

decisions for legal or constitutional error.”).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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