FILED
NOT FOR PUBLICATION JUL 20 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
YOGESH KUMAR, No. 08-71611
Petitioner, Agency No. A077-172-366
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 12, 2011 **
Before: SCHROEDER, ALARCÓN, and LEAVY, Circuit Judges.
Yogesh Kumar, a native and citizen of India, petitions for review of the
Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen
removal proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. We review
for abuse of discretion the denial of a motion to reopen, and de novo questions of
*
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).
law, including claims of ineffective assistance of counsel, Mohammed v. Gonzales,
400 F.3d 785, 791-92 (9th Cir. 2005). We deny in part and dismiss in part the
petition for review.
The BIA did not abuse its discretion in denying Kumar’s motion to reopen
as untimely where the motion was filed eleven months after the BIA’s final
decision. See 8 C.F.R. § 1003.2(c)(2). Kumar failed to show that he acted with the
due diligence required for equitable tolling, see Iturribarria v. INS, 321 F.3d 889,
897 (9th Cir. 2003) (a petitioner may obtain equitable tolling based on ineffective
assistance of counsel as long as he “act[ed] with due diligence in discovering the
deception, fraud, or error”), and he also failed to present sufficient evidence of
changed circumstances in India to qualify for an exception to the time limits, see 8
C.F.R. § 1003.2(c)(3)(ii); see also Toufighi v. Mukasey, 538 F.3d 988, 996 (9th
Cir. 2008) (requiring movant to produce material evidence with motion to reopen
that conditions in country of nationality had changed).
To the extent Kumar challenges the BIA’s underlying decision dismissing
his appeal from an immigration judge’s denial of his asylum, withholding of
removal, and Convention Against Torture claims, we lack jurisdiction because this
petition is not timely as to that decision. See Stone v. INS, 514 U.S. 386, 504
(1995).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
2 08-71611