Kaur v. Lynch , 662 F. App'x 45 ( 2016 )

14-25
Kaur v. Lynch
BIA
A075 306 900
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE
(WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 12th day of October, two thousand sixteen.
5
6 PRESENT:
7 JON O. NEWMAN,
8 ROSEMARY S. POOLER,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 _____________________________________
12
13 AMARJIT KAUR,
14 Petitioner,
15
16 v. 14-25
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Amarjit Kaur, Pro Se, Richmond Hill,
24 New York.
25
26 FOR RESPONDENT: Joyce R. Branda, Acting Assistant
27 Attorney General; Jennifer L.
28 Lightbody, Senior Litigation
29 Counsel; Laura M.L. Maroldy, Trial
30 Attorney, Office of Immigration
31 Litigation, United States
32 Department of Justice, Washington,
33 D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review is
4 DENIED.
5 Petitioner Amarjit Kaur, a native and citizen of India,
6 seeks review of a December 12, 2013, decision of the BIA denying
7 her fifth motion to reopen. In re Amarjit Kaur, No. A075 306
8 900 (B.I.A. Dec. 12, 2013). We assume the parties’ familiarity
9 with the underlying facts and procedural history in this case.
10 Our review is limited to the BIA’s December 2013 decision
11 denying Kaur’s fifth motion to reopen her removal proceedings.
12 See Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 89-90
13 (2d Cir. 2001). We review the BIA’s denial of Kaur’s motion
14 for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517
15 (2d Cir. 2006).
16 An alien seeking to reopen proceedings may file one motion
17 to reopen no later than 90 days after the final administrative
18 decision. 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R.
19 § 1003.2(c)(2). There is no dispute that Kaur’s September 2013
20 motion to reopen is untimely and number barred because the final
21 administrative decision was issued in 1998—when Kaur failed to
22 appear in immigration court—and this was Kaur’s fifth motion.
23 Although the time and number limitations may be excused based
24 on a material change in conditions “in the country of
2
1 nationality or the country to which removal has been ordered,”
2 8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R.
3 § 1003.2(c)(3)(ii), as discussed below, Kaur’s evidence showed
4 only a continuation of prior conditions.
5 Kaur’s motion alleged that police continue to look for her
6 based on her political activities 17 years ago; she alleged the
7 same in prior motions to reopen. The BIA did not err in finding
8 these conditions to be merely a continuation of those previously
9 alleged and thus not new evidence as required for reopening.
10 See Norani v. Gonzales, 451 F.3d 292, 294 (2d Cir. 2006); In
11 re S-Y-G, 24 I. & N. Dec. 247, 253 (BIA 2007).
12 Moreover, the country conditions evidence in the record
13 supports the BIA’s determination that Kaur failed to establish
14 a material change in conditions. Jian Hui Shao v. Mukasey, 546
15 F.3d 138, 169 (2d Cir. 2008). The BIA did not err in giving
16 little weight to letters from Kaur’s father-in-law and village
17 leader. Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315,
18 342 (2d Cir. 2006); In re H-L-H & Z-Y-Z, 25 I. & N. Dec. 209,
19 215 (BIA 2010), rev'd on other grounds by Hui Lin Huang v.
20 Holder, 677 F.3d 130 (2d Cir. 2012). First, although the 1997
21 State Department India Country Profile, in evidence during
22 Kaur’s original proceedings, showed improvement in conditions
23 for Punjabi Sikhs following a widespread crackdown on violent
24 Sikh separatists, that report also reflected that individual
3
1 Sikhs were still detained and questioned about prior militancy
2 and that “[c]ustodial abuse[s of individual Sikhs] . . .
3 remain[ed] a significant problem.” Kaur appended similar
4 evidence to her motion, including several newspaper articles
5 showing isolated incidents of torture and unexplained deaths
6 of Sikhs in police custody. The evidence also showed that,
7 while torture remained a problem, the government was
8 investigating and arresting offending officers. None of her
9 evidence establishes that Sikh separatists are at a greater
10 threat of police violence than they were in 1998, the year of
11 Kaur’s merits hearing. In re S-Y-G, 24 I. & N. Dec. at 253.
12 Thus, the BIA did not abuse its discretion in finding no material
13 change as needed to excuse the time and number limitations on
14 Kaur’s motion. 8 U.S.C. § 1229a(c)(7)(C)(ii); Ali, 448 F.3d
15 at 517.
16 Kaur also argues that the BIA should have reopened because
17 her counsel in her initial proceeding was ineffective and
18 allowed her to be ordered removed in absentia. We, as did the
19 BIA, decline to reach this issue as we have already addressed
20 it and found it without merit. A motion to reopen is not a
21 vehicle to present previously rejected arguments based on
22 evidence that existed years prior to the filing of the motion.
23 See 8 C.F.R. § 1003.2(c) (requiring new evidence for reopening);
24 Johnson v. Holder, 564 F.3d 95, 99 (2d Cir. 2009) (holding that
4
1 “law of the case” doctrine requires court to adhere to prior
2 decision on issue in subsequent stages of same case).
3 For the foregoing reasons, the petition for review is
4 DENIED. As we have completed our review, any stay of removal
5 that the Court previously granted in this petition is VACATED,
6 and any pending motion for a stay of removal in this petition
7 is DISMISSED as moot. Any pending request for oral argument
8 in this petition is DENIED in accordance with Federal Rule of
9 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
10 34.1(b).
11 FOR THE COURT:
12 Catherine O=Hagan Wolfe, Clerk
5