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. At a stated term of the United States Court of Appeals for**  1 **the Second Circuit, held at the Thurgood Marshall United States** 2 **Courthouse, 40 Foley Square, in the City of New York, on the** 3 **12 th**  **day of October, two thousand sixteen.** 4 5 **PRESENT:** 6 **JON O. NEWMAN,** 7 **ROSEMARY S. POOLER,** 8 **RICHARD C. WESLEY,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **AMARJIT KAUR,** 13 Petitioner **,** 14 15 **v. 14-25** 16 **NAC** 17 **LORETTA E. LYNCH, UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent **.** 20

**_____________________________________** 21 22 **FOR PETITIONER:** Amarjit Kaur, Pro Se, Richmond Hill, 23 New York. 24 25 **FOR RESPONDENT:** Joyce R. Branda, Acting Assistant 26 Attorney General; Jennifer L. 27 Lightbody, Senior Litigation 28 Counsel; Laura M.L. Maroldy, Trial 29 Attorney, Office of Immigration 30 Litigation, United States 31 Department of Justice, Washington, 32 D.C. 332 UPON DUE CONSIDERATION of this petition for review of a 1 Board of Immigration Appeals (“BIA”) decision, it is hereby 2 ORDERED, ADJUDGED, AND DECREED that the petition for review is 3

DENIED. 4 Petitioner Amarjit Kaur, a native and citizen of India, 5 seeks review of a December 12, 2013, decision of the BIA denying 6 her fifth motion to reopen. In re Amarjit Kaur, No. A075 306 7 900 (B.I.A. Dec. 12, 2013). We assume the parties’ familiarity 8 with the underlying facts and procedural history in this case. 9 Our review is limited to the BIA’s December 2013 decision 10 denying Kaur’s fifth motion to reopen her removal proceedings. 11 See Ke Zhen Zhao v. U.S. Dep’t of Justice , 265 F.3d 83, 89-90 12 (2d Cir. 2001). We review the BIA’s denial of Kaur’s motion 13 for abuse of discretion. Ali v. Gonzales , 448 F.3d 515, 517 14 (2d Cir. 2006). 15 An alien seeking to reopen proceedings may file one motion 16 to reopen no later than 90 days after the final administrative 17 decision. 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R. 18 § 1003.2(c)(2). There is no dispute that Kaur’s September 2013 19 motion to reopen is untimely and number barred because the final 20 administrative decision was issued in 1998—when Kaur failed to 21 appear in immigration court—and this was Kaur’s fifth motion. 22 Although the time and number l imitations may be excused based 23 on a material change in conditions “in the country of 243 nationality or the country to which removal has been ordered,” 1 8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R. 2 § 1003.2(c)(3)(ii), as discussed below , Kaur’s evidence showed 3 only a continuation of prior conditions. 4 Kaur’s motion alleged that police continue to look for her 5 based on her political activities 17 years ago; she alleged the 6 same in prior motions to reopen. The BIA did not err in finding 7 these conditions to be merely a continuation of those previously 8 alleged and thus not new evidence as required for reopening. 9 See Norani v. Gonzales , 451 F.3d 292, 294 (2d Cir. 2006); In 10
re S-Y-G , 24 I. & N. Dec. 247, 253 (BIA 2007). 11 Moreover, the country conditions evidence in the record 12 supports the BIA’s determination that Kaur failed to establish 13 a material change in conditions. Jian Hui Shao v. Mukasey , 546 14 F.3d 138, 169 (2d Cir. 2008). The BIA did not err in giving 15 little weight to letters from Kaur’s father-in-law and village 16 leader. Xiao Ji Chen v. U.S. Dep’t of Justice , 471 F.3d 315, 17 342 (2d Cir. 2006); In re H-L-H & Z-Y-Z , 25 I. & N. Dec. 209, 18 215 (BIA 2010), rev'd on other grounds by Hui Lin Huang v. 19 Holder , 677 F.3d 130 (2d Cir. 2012). First, although the 1997 20 State Department India Country Profile, in evidence during 21 Kaur’s original proceedings, showed improvement in conditions 22 for Punjabi Sikhs following a widespread crackdown on violent 23 Sikh separatists, that report also reflected that individual 244 Sikhs were still detained and questioned about prior militancy 1 and that “[c]ustodial abuse[s of individual Sikhs] . . . 2 remain[ed] a significant problem.” Kaur appended similar 3 evidence to her motion, including several newspaper articles 4 showing isolated incidents of torture and unexplained deaths 5 of Sikhs in police custody. The evidence also showed that, 6 while torture remained a problem, the government was 7 investigating and arresting offending officers. None of her 8 evidence establishes that Sikh separatists are at a greater 9 threat of police violence than they were in 1998, the year of 10 Kaur’s merits hearing. In re S-Y-G , 24 I. & N. Dec. at 253. 11 Thus, the BIA did not abuse its discretion in finding no material 12 change as needed to excuse the time and number limitations on 13 Kaur’s motion. 8 U.S.C. § 1229a(c)(7)(C)(ii); Ali , 448 F.3d 14 at 517. 15 Kaur also argues that the BIA should have reopened because 16 her counsel in her initial proceeding was ineffective and 17 allowed her to be ordered removed in absentia . We, as did the 18 BIA, decline to reach this issue as we have already addressed 19 it and found it without merit. A motion to reopen is not a 20 vehicle to present previously rejected arguments based on 21 evidence that existed years prior to the filing of the motion. 22
See 8 C.F.R. § 1003.2(c) (requiring new evidence for reopening); 23 Johnson v. Holder , 564 F.3d 95, 99 (2d Cir. 2009) (holding that 245 “law of the case” doctrine requires court to adhere to prior 1 decision on issue in subsequent stages of same case). 2 For the foregoing reasons, the petition for review is 3 DENIED. As we have completed our rev iew, any stay of removal 4 that the Court previously granted in this petition is VACATED, 5 and any pending motion for a stay of removal in this petition 6 is DISMISSED as moot. Any pending request for oral argument 7 in this petition is DENIED in accordance with Federal Rule of 8 Appellate Procedure 34(a)(2), and S econd Circuit Local Rule 9 34.1(b). 10
FOR THE COURT: 11 Catherine O = Hagan Wolfe, Clerk 12