Volavola v. Holder

FILED
NOT FOR PUBLICATION FEB 26 2010

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

PARAMJIT SINGH SHERGIL, No. 07-73793

Petitioner, Agency No. A070-866-160

v.
MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,

Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Submitted February 16, 2010 **

Before: FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.

Paramjit Singh Shergil, 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

*
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).

KY/Research
for abuse of discretion the denial of a motion to reopen. Iturribarria v. INS, 321

F.3d 889, 894 (9th Cir. 2003). We deny in part and dismiss in part the petition for

review.

The BIA did not abuse its discretion in denying Shergil’s motion to reopen

as untimely where the motion was filed over three years after the BIA’s final

decision, see 8 C.F.R. § 1003.2(c)(2), and Shergil failed to establish changed

country conditions in India to qualify for the regulatory exception to the time

limitation, see 8 C.F.R. § 1003.2(c)(3)(ii); see also Malty v. Ashcroft, 381 F.3d

942, 945 (9th Cir. 2004) (“The critical question is ... whether circumstances have

changed sufficiently that a petitioner who previously did not have a legitimate

claim for asylum now has a well-founded fear of future persecution.”). In addition,

the BIA did not abuse its discretion in finding Shergil failed to explain why the

psychological report attached to his motion could not have been discovered prior to

his immigration hearing, see 8 C.F.R. § 1003.2(c)(1); see also Goel v. Gonzales,

490 F.3d 735, 738 (9th Cir. 2007) (holding that if evidence was capable of being

discovered prior to the hearing, it cannot serve as the basis for a motion to reopen).

We decline to reconsider Shergil’s challenge to the agency’s adverse

credibility determination because his contentions have already been considered and

rejected by this court. See Shergil v. Gonzales, 146 Fed.Appx. 902 (9th Cir. 2005);

KY/Research 2 07-73793
see also Merritt v. Mackey, 932 F.2d 1317, 1320 (9th Cir. 1991) (under the ‘law of

the case doctrine,’one panel of an appellate court will not reconsider questions

which another panel has decided on a prior appeal in the same case).

We reject Shergil’s contention that the BIA failed to consider the evidence

he submitted with the motion to reopen, because Shergil has not overcome the

presumption that the BIA reviewed the record. See Fernandez v. Gonzales, 439

F.3d 592, 603 (9th Cir. 2006).

We lack jurisdiction to consider Shergil’s contention that his prior attorney

provided him with ineffective assistance, because it is unexhausted. See Barron v.

Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

KY/Research 3 07-73793