Kumar v. Bondi

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 23 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

SURINDER KUMAR, No. 23-740 Agency No. Petitioner, A206-080-055 v. MEMORANDUM* PAMELA BONDI, Attorney General,

Respondent.

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

Submitted October 21, 2025** Phoenix, Arizona

Before: TALLMAN, BADE, and LEE, Circuit Judges.

Petitioner Surinder Kumar, a native and citizen of India, seeks review of a

Board of Immigration Appeals’ (BIA) decision denying his motion to reopen

removal proceedings based on changed country conditions and request for

reconsideration of the BIA’s November 2018 decision. We have jurisdiction under

* 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). 8 U.S.C. § 1252, and we deny the petition.

We review the BIA’s denial of a motion to reopen or a request for

reconsideration for abuse of discretion. Perez-Portillo v. Garland, 56 F.4th 788,

792 (9th Cir. 2022); Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir. 2009). The

BIA abuses its discretion if the decision was “arbitrary, irrational, or contrary to

law.” Perez-Portillo, 56 F.4th at 792 (citation omitted).

1. The BIA did not abuse its discretion in denying Kumar’s motion to

reopen based on changed country conditions. “To prevail on a motion to reopen on

the basis of changed country conditions, . . . [a] petitioner must (1) produce

evidence that conditions have changed in the country of removal; (2) demonstrate

that the evidence is material; (3) show that the evidence was not available and

would not have been discovered or presented at the previous hearings; and

(4) ‘demonstrate that the new evidence, when considered together with the

evidence presented at the original hearing, would establish prima facie eligibility

for the relief sought.’” Agonafer v. Sessions, 859 F.3d 1198, 1204 (9th Cir. 2017)

(citation omitted). “[A] petitioner cannot succeed on . . . a motion that ‘relies

solely on a change in personal circumstances,’ without also providing sufficient

evidence of related changed country conditions.” Rodriguez v. Garland, 990 F.3d

1205, 1209 (9th Cir. 2021) (emphasis omitted) (quoting Chandra v. Holder, 751

F.3d 1034, 1037 (9th Cir. 2014)).

2 23-740 In support of his motion to reopen, Kumar submitted an affidavit from a

family member indicating that individuals inquired into his whereabouts after his

final hearing in June 2017. Kumar also submitted various articles dated between

2011 and 2012. The BIA reasonably concluded that although individuals may

have inquired into his whereabouts following his final hearing, this change in

personal circumstances alone is insufficient to support reopening based on changed

country conditions. Id. at 1211. The BIA also reasonably concluded that Kumar

had not met his burden to establish a material change in country conditions given

that the articles he submitted all existed at the time of his final hearing in June

2017. See Agonafer, 859 F.3d at 1204 (“Evidence that simply recounts previous

conditions presented at a previous hearing or that is voluminous but redundant is

not sufficient to show a change in country conditions.”). Therefore, it was not

arbitrary, irrational, or contrary to law for the BIA to deny Kumar’s motion to

reopen. See Perez-Portillo, 56 F.4th at 792 (citation omitted).

2. We do not reach the merits of Kumar’s claim that the BIA erred in

overlooking his request for sua sponte reconsideration of its November 2018

decision because Kumar failed to raise the argument before the BIA.1 See

1 There is no dispute that any attempt Kumar made at requesting reconsideration of the BIA’s November 2018 decision was untimely. 8 U.S.C. § 1229a(c)(6)(A)–(B); 8 C.F.R. § 1003.2(b)(2). And while the statutory filing deadline for a request for reconsideration may be subject to equitable tolling, see

3 23-740 Suate-Orellana v. Garland, 101 F.4th 624, 629 (9th Cir. 2024) (holding that even

though the administrative exhaustion requirement of 8 U.S.C. § 1252(d)(1) is not

jurisdictional, it is a mandatory claim-processing rule that a court must enforce if a

party raises the issue). While Kumar “need not use precise legal terminology to

exhaust his claim,” the BIA must be sufficiently on notice so that it “had an

opportunity to pass on th[e] issue.” Umana-Escobar v. Garland, 69 F.4th 544, 550

(9th Cir. 2023) (alteration in original) (citations omitted). At no point in Kumar’s

motion did he ask the BIA to invoke its sua sponte authority under 8 C.F.R.

§ 1003.2(a). Because Kumar did not sufficiently put the BIA on notice of his

intent to request sua sponte reconsideration, he failed to exhaust his administrative

remedies.

PETITION FOR REVIEW DENIED.

Lona v. Barr, 958 F.3d 1225, 1230 (9th Cir. 2020), Kumar does not argue that equitable tolling is warranted.

4 23-740