Rupinder Kaur v. Eric H. Holder Jr. , 440 F. App'x 600 ( 2011 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUN 29 2011
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
RUPINDER KAUR, a.k.a. Norma Irene No. 08-73006
Bustamante,
Agency No. A095-710-204
Petitioner,
v. MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 15, 2011 **
Before: CANBY, O’SCANNLAIN, and FISHER, Circuit Judges.
Rupinder Kaur, a native and citizen of India, petitions for review of the
Board of Immigration Appeals’ (“BIA”) order denying her motion to reopen
removal proceedings. We have jurisdiction under 8 U.S.C. § 1252. We review for
abuse of discretion the denial of a motion to reopen, Toufighi v. Mukasey, 538 F.3d
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
988, 992 (9th Cir. 2008), and de novo due process claims, Mohammed v. Gonzales,
400 F.3d 785, 791–92 (9th Cir. 2005). We deny the petition for review.
The BIA did not abuse its discretion in denying Kaur’s motion to reopen
because it considered the record and acted within its broad discretion in
determining that the evidence of changed country conditions was insufficient to
warrant reopening given the underlying adverse credibility determination. See
Toufighi, 538 F.3d at 996-97 (underlying adverse credibility determination
rendered evidence of changed circumstances immaterial). Kaur has not overcome
the presumption that the BIA considered all the evidence. See Larita–Martinez v.
INS, 220 F.3d 1092, 1095–96 (9th Cir. 2000) (petitioner must overcome the
presumption that the agency has considered all the evidence).
The BIA also did not abuse its discretion in denying the motion to reopen
based on the birth of Kaur’s U.S. citizen son, the son’s and Kaur’s “sickliness,” or
the approval of an I-130 petition filed on Kaur’s behalf by her husband because
Kaur failed to demonstrate how these changes in her personal circumstances were
material to the removal proceedings. See 8 C.F.R. 1003.2(c)(1) (BIA may reopen
only if it appears that the “evidence sought to be offered is material and was not
available and could not have been discovered or presented at the former hearing”);
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see also He v. Gonzales, 501 F.3d 1128, 1132 (9th Cir. 2007) (change in personal
circumstances does not qualify as a change in country circumstances).
We lack jurisdiction to review the underlying adverse credibility finding,
including Kaur’s separation of powers argument, because this petition for review is
not timely as to the agency’s order finding her not credible. See Singh v. INS, 315
F.3d 1186, 1188 (9th Cir. 2003); 8 U.S.C. § 1252(b)(1).
PETITION FOR REVIEW DENIED.
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