Patel v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 28, 2024
• Docket: 23-282
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 28 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

SANJAYKUMAR PRAHLADBHAI No. 23-282 PATEL, Agency No. A215-823-741 Petitioner,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted March 26, 2024** Pasadena, California

Before: RAWLINSON, LEE, and BRESS, Circuit Judges.

Sanjaykumar Prahladbhai Patel, a citizen of India, seeks review of a Board of

Immigration Appeals (BIA) decision denying his motion to reopen immigration

proceedings on his 2019 removal order. “We review a BIA ruling on a motion to

* 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). reopen for an abuse of discretion and will reverse the denial of a motion to reopen

only if the Board acted arbitrarily, irrationally, or contrary to law.” Martinez-

Hernandez v. Holder, 778 F.3d 1086, 1088 (9th Cir. 2015) (per curiam) (quotation

marks and citation omitted). We have jurisdiction under 8 U.S.C. § 1252, and we

deny the petition.

The BIA did not abuse its discretion in denying Patel’s motion to reopen. The

Immigration and Nationality Act allows an alien to file a single motion to reopen

within 90 days of a final order of removal. 8 U.S.C. § 1229a(c)(7)(A), (C); 8 C.F.R.

§ 1003.2(c)(2). Patel does not dispute that he filed his motion to reopen outside that

90-day period but argues that an exception should apply. Because Patel has failed

to establish that his motion qualifies for such an exception, the BIA properly denied

his motion to reopen.

The BIA did not abuse its discretion in denying Patel’s motion to reopen for

lack of changed country conditions. See 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R.

§ 1003.2(c)(3)(ii). As the BIA explained, Patel’s circumstances did not warrant

relief based on changed circumstances because Patel had not overcome his prior

adverse credibility determination. See generally Lopez-Vasquez v. Holder, 706 F.3d

1072, 1080 (9th Cir. 2013) (“The BIA is entitled to deny a motion to reopen where

the applicant fails to demonstrate prima facie eligibility for the underlying relief.”

(citation omitted)). As we have held, the BIA “may rely on a prior adverse

2 23-282 credibility determination to deny a motion to reopen if that earlier finding factually

undercuts the petitioner’s new argument.” Singh v. Garland, 46 F.4th 1117, 1120

(9th Cir. 2022) (citing Greenwood v. Garland, 36 F.4th 1232, 1234 (9th Cir. 2022)).

In this case, Patel’s motion to reopen and accompanying materials did not

sufficiently resolve the prior inconsistent testimony and evidence on the question of

whether he was a farmer in India, which remains critical to his theory of future

persecution in India.

Patel points out that the BIA on a motion to reopen must address “new

evidence” that is “independent of the evidence that the IJ relied on in making the

adverse credibility finding.” Id. at 1122. But even assuming Patel has brought

forward new evidence that is independent of the earlier adverse credibility finding,

the BIA explained that Patel “has not articulated why this evidence was not or could

not have been submitted in a timely fashion during the proceedings before the

Immigration Judge or in conjunction with his appeal before us.” Patel has not shown

this determination reflects an abuse of discretion.

Finally, to the extent that Patel’s motion rests on changed personal

circumstances, the BIA properly concluded that it lacked authority to grant the

motion to reopen because changed personal circumstances alone cannot be a basis

for granting an untimely motion to reopen. See Rodriguez v. Garland, 990 F.3d

1205, 1209 (9th Cir. 2021) (“[W]hile changes in personal circumstances may be

3 23-282 relevant to a motion to reopen based on changed country conditions, a petitioner

cannot succeed on such a motion that ‘relies solely on a change in personal

circumstances,’ without also providing sufficient evidence of changed country

conditions.”) (quoting Chandra v. Holder, 751 F.3d 1034, 1037 (9th Cir. 2014)); 8

C.F.R. § 1003.2(c)(3)(ii).

PETITION DENIED.

4 23-282