11-3356-ag BIA

Kaur v. Holder Hom, IJ

 A073 489 222

 

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

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At a stated term of the United States Court of Appeals

for the Second Circuit, held at the Daniel Patrick Moynihan

United States Courthouse, 500 Pearl Street, in the City of

New York, on the 9th day of August, two thousand twelve.

PRESENT:

ROBERT A. KATZMANN,

RAYMOND J. LOHIER, JR.,

CHRISTOPHER F. DRONEY,

Circuit Judges.

_____________________________________

GURBAX KAUR,

Petitioner, 

 v. 11-3356-ag

NAC 

ERIC H. HOLDER, JR., UNITED STATES 

ATTORNEY GENERAL, 

Respondent. _____________________________________

FOR PETITIONER: Jaspreet Singh, Jackson Heights,

N.Y. 

FOR RESPONDENT: Stuart F. Delery, Acting Assistant

Attorney General; James A. Hunolt,

Senior Litigation Counsel; Jesse D.

Lorenz, Trial Attorney, Office of

Immigration Litigation, United

States Department of Justice,

Washington, D.C.
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UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DENIED.

Petitioner Gurbax Kaur, a native and citizen of India,

seeks review of the July 20, 2011, order of the BIA

affirming a decision of Immigration Judge (“IJ”) Sandy K.

Hom, which denied her second motion to reopen. In re Gurbax

Kaur, No. A073 489 222 (B.I.A. July 20, 2011), aff’g No.

A073 489 222 (Immig. Ct. N.Y. City April 13, 2011). We

assume the parties’ familiarity with the underlying facts

and procedural history of the case. 

Under the circumstances of this case, we have reviewed

the decision of the IJ as supplemented by the BIA. See Yan

Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We

review the agency’s denial of a motion to reopen for abuse

of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.

2005) (per curiam). 

The agency did not abuse its discretion in denying

Kaur’s second motion to reopen as untimely and numberbarred. See Kaur, 413 F.3d at 233-34. An alien may file

one motion to reopen, generally no later than 90 days after
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the date on which the final administrative decision was

rendered in the proceedings sought to be reopened. 8 U.S.C.

§ 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2). There is

no dispute that Kaur’s March 2011 motion was untimely and

number-barred, as her final administrative order was issued

in 1995 and she had previously filed one motion to reopen. 

See 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R.

§ 1003.2(c)(2). 

However, the time limitation does not apply to: (1) a

motion to rescind an exclusion order with a showing “that

the failure to appear was through no fault of the alien,” 8

C.F.R. § 1003.23(b)(4)(iii)(A)(2); or (2) motions to reopen

“based on changed circumstances arising in the country of

nationality or in the country to which deportation has been

ordered, if such evidence is material and was not available

and could not have been discovered or presented at the

previous hearing,” 8 C.F.R. § 1003.2(c)(3)(ii); see also 8

U.S.C. § 1229a(c)(7)(C)(ii).

To the extent Kaur sought to rescind her in absentia

exclusion order, the agency reasonably found that she had

received adequate notice of her hearing, and thus did not

demonstrate reasonable cause for her failure to appear,
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because she had been personally notified both in writing and

verbally in her native language of the date and time of her

hearing, and she acknowledged during her airport interview

and in a letter to the immigration court that she knew she

was to appear before an IJ sometime in June 1995. See Lopes

v. Gonzales, 468 F.3d 81, 84-85 (2d Cir. 2006) (concluding

that written notice in English was sufficient and that the

agency had no duty to notify alien of the consequences of

failure to appear in his native Portugese); cf. In re

Mancera-Monroy, 22 I. & N. Dec. 79, 82 (BIA 1998) (finding

that the lack of notice of a hearing constituted reasonable

cause for an alien’s failure to appear at his hearing).

Accordingly, because Kaur had notice of the time and place

of her hearing, the BIA did not abuse its discretion in

denying her motion to rescind. See 8 C.F.R.

§ 1003.23(b)(4)(iii)(B); Kaur, 413 F.3d at 233-34. 

The agency also reasonably found that Kaur failed to

demonstrate a material change in conditions in India. While

the 2007 and 2008 State Department Reports Kaur submitted

document incidents of arbitrary arrest, rape, and torture by

police and one instance of anti-Sikh violence, she did not

provide evidence of conditions prior to her 1995 hearing, as
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required to demonstrate a change in conditions adequate for

reopening. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169

(2d Cir. 2008) (reviewing the BIA’s factual findings

regarding changed country conditions under the substantial

evidence standard); In re S-Y-G-, 24 I. & N. Dec. 247, 253

(BIA 2007) (“In determining whether evidence accompanying a

motion to reopen demonstrates a material change in country

conditions that would justify reopening, [the BIA]

compare[s] the evidence of country conditions submitted with

the motion to those that existed at the time of the merits

hearing below.”). Furthermore, the agency reasonably found

that Kaur’s background evidence was not material to her

asylum claim because it did not indicate that the police

targeted any specific group or that she, as a Sikh woman,

would be targeted for persecution. See 8 C.F.R.

§ 1003.2(c)(1), (3)(ii) (requiring that a motion to reopen

present material evidence of a change in country

conditions); 8 C.F.R. § 1208.13(b)(2)(i)(B) (requiring that

an alien’s fear of future persecution be objectively

reasonable).

Because the evidence Kaur submitted was insufficient to

establish a material change in country conditions, the BIA

did not abuse its discretion in concluding that she failed
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to meet an exception to the filing deadline and number

restrictions, and in denying her motion to reopen as

untimely and number-barred. See 8 U.S.C. § 1229a(c)(7)(A),

(C)(i), (ii); 8 C.F.R. § 1003.2(c)(2), (3). 

For the foregoing reasons, the petition for review is

DENIED. As we have completed our review, the pending motion

for a stay of removal in this petition is DENIED as moot.

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk