FILED
NOT FOR PUBLICATION FEB 25 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MANPREET SINGH, No. 10-71835
Petitioner, Agency No. A098-816-294
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 12, 2014
San Francisco, California
Before: CALLAHAN and M. SMITH, Circuit Judges, and KORMAN, Senior
District Judge.**
Manpreet Singh, a native and citizen of India, petitions for review of a
decision of the Board of Immigration Appeals (BIA) affirming the Immigration
Judge’s (IJ) denial of his application for asylum as untimely. Because the parties
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Edward R. Korman, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
are familiar with the facts and procedural history of this case, we repeat only those
facts necessary to resolve the issues raised on appeal. We dismiss in part and deny
in part the petition for review.
We first address Singh’s argument that materially changed circumstances
affecting his eligibility for asylum excuse his untimely application. See 8 U.S.C. §
1158(a)(2)(D); see also 8 C.F.R. § 1208.4(a)(4)(i). The BIA did not err in
concluding that Singh failed to establish materially changed circumstances
affecting his eligibility for asylum to excuse his untimely application. First, the
BIA properly concluded that Singh’s motion to reopen was timely, and thus
correctly did not address whether Singh established changed country conditions
when it granted that motion. See 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c).
Second, Singh failed to raise before the BIA the issue that the IJ’s determination
that there were no changed country conditions was inconsistent with the IJ’s grant
of withholding of removal. Therefore, Singh failed to exhaust this issue and we
lack jurisdiction to hear it. Vargas v. U.S. Dep’t of Immigr. & Naturalization, 831
F.2d 906, 907–08 (9th Cir. 1987); see also 8 U.S.C. § 1252(d). Finally, the BIA
did not err in concluding that Singh failed to establish changed circumstances
because, prior to 2005, Singh’s father was already widely known as a Sikh activist,
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the Indian police’s search for Singh had already crossed state lines, and police were
targeting members of Singh’s family.
We next turn to Singh’s argument that the undisputed facts compel the
conclusion that extraordinary circumstances excuse his failure to timely file his
asylum application. See 8 U.S.C. § 1158(a)(2)(D). The BIA did not err in
construing Singh’s challenge to the IJ’s ruling on extraordinary circumstances as a
motion to reconsider the BIA’s 2007 decision because Singh raised arguments
which the BIA had previously addressed in 2007. Construing Singh’s challenge as
a motion to reconsider, the BIA did not abuse its discretion in declining to address
his arguments because he failed to point to any factual or legal error in the BIA’s
2007 decision concerning extraordinary circumstances. See 8 U.S.C. §
1229a(c)(6)(C); Iturribarria v. I.N.S., 321 F.3d 889, 895 (9th Cir. 2003); see also
Socop-Gonzalez v. I.N.S., 272 F.3d 1176, 1180 n.2 (9th Cir. 2001) (en banc).
Additionally, Singh failed to exhaust the issue that the BIA had previously
misconstrued the standard relating to extraordinary circumstances in 2007 because
Singh did not raise this argument before the BIA in 2009. We thus lack
jurisdiction over this claim. See Vargas, 831 F.2d at 907–08.
Finally, even assuming this issue is properly before us, substantial evidence
supports the IJ’s extraordinary circumstances determination that Singh was capable
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of filing a timely asylum application. See Dhital v. Mukasey, 532 F.3d 1044, 1050
(9th Cir. 2008) (per curiam). The record clearly demonstrates that despite Singh’s
expert witness’s conclusion that Singh was “unable to plan for his future, provide
for his basic needs, or engage with others on an emotional or intellectual level,” he
was able to work and travel both within and outside of India after the police began
targeting him.
PETITION DISMISSED IN PART AND DENIED IN PART.
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