Surjit Samra v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION OCT 12 2012

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

FOR THE NINTH CIRCUIT

SURJIT SINGH SAMRA, No. 10-71354

Petitioner, Agency No. A078-648-183

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

Respondent.

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

Submitted October 9, 2012 **

Before: RAWLINSON, MURGUIA, and WATFORD, Circuit Judges.

Surjit Singh Samra, a native and citizen of India, petitions for review of the

Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen. Our

jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the

*
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).
BIA’s denial of a motion to reopen. Najmabadi v. Holder, 597 F.3d 983, 986 (9th

Cir. 2010). We deny in part and dismiss in part the petition for review.

Samra contends he established changed country conditions and a prima facie

case for asylum based on an increase in police abuses and based on his diagnosis of

post-traumatic stress disorder and the poor quality of India’s mental health system.

With respect to police abuses, the BIA did not abuse its discretion in

denying Samra’s untimely motion to reopen because he did not establish changed

circumstances in India to qualify for the regulatory exception to the time limit. See

8 C.F.R. § 1003.2(c)(3)(ii); Najmabadi, 597 F.3d at 989-90 (petitioner’s evidence

was not “qualitatively different” from evidence in prior proceedings); Toufighi v.

Mukasey, 538 F.3d 988, 996-97 (9th Cir. 2008) (evidence of persecution of

apostates was not material given adverse credibility finding on petitioner’s claim of

religious conversion).

With respect to his mental health claims, the BIA did not abuse its discretion

in finding Samra did not show that his diagnosis represented new evidence. See 8

C.F.R. § 1003.2(c)(3)(ii); Goel v. Gonzales, 490 F.3d 735, 738 (9th Cir. 2007)

(evidence capable of being discovered prior to hearing cannot serve as basis for

motion to reopen). Further, Samra has not overcome the presumption that the BIA

considered the evidence related to his mental health claims. See Fernandez v.

2 10-71354
Gonzales, 439 F.3d 592, 603 (9th Cir. 2006). Finally, we lack jurisdiction to

consider his remaining contentions because he did not raise them to the BIA. See

Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004) (no jurisdiction over claims

not presented below).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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