NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 2 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAGDISH KAUR, AKA Jagdish Chahal, No. 11-73169
Petitioner, Agency No. A076-726-516
v.
JEFFERSON B. SESSIONS III, Attorney MEMORANDUM*
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 26, 2017**
Before: SILVERMAN, TALLMAN, and N.R. SMITH, Circuit Judges.
Jagdish Kaur, a native and citizen of India, petitions for review of the Board
of Immigration Appeals’ (“BIA”) order dismissing her appeal from an immigration
judge’s order denying her motion to reopen removal proceedings conducted in
absentia. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
discretion the denial of a motion to reopen, and review de novo questions of law.
Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We deny the
petition for review.
The BIA did not abuse its discretion in denying Kaur’s motion to reopen as
untimely, where Kaur filed the motion seven years after her final order of removal,
and has not demonstrated the due diligence necessary to warrant equitable tolling
of the filing deadline. See 8 C.F.R. § 1003.23(b)(4)(iii); Avagyan v. Holder, 646
F.3d 672, 679 (9th Cir. 2011) (equitable tolling is available to an alien who is
prevented from filing a motion to reopen due to deception, fraud, or error, as long
as the alien exercises due diligence in discovering such circumstances).
The BIA’s due diligence determination did not constitute impermissible
factfinding. See 8 C.F.R. § 1003.1(d)(3); Matter of A-S-B-, 24 I. & N. Dec. 493,
496 (BIA 2008) (clarifying that the BIA retains authority to apply a particular
standard of law to the facts); cf. Ghahremani v. Gonzales, 498 F.3d 993, 998-99
(9th Cir. 2007) (due diligence inquiry in the motion to reopen context involves the
application of law to established facts). We also reject as unsupported by the
record Kaur’s contention that the BIA made an improper credibility determination.
In light of this disposition, we do not reach Kaur’s remaining contentions
regarding her compliance with the procedural requirements of Matter of Lozada,
19 I. & N. Dec. 637 (BIA 1988), the alleged ineffectiveness of prior counsel,
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prejudice resulting from prior counsel’s performance, and whether she established
exceptional circumstances excusing her failure to appear at her 2003 hearing. See
Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010) (review is limited to the
actual grounds relied upon by the BIA); Simeonov v. Ashcroft, 371 F.3d 532, 538
(9th Cir. 2004) (courts and agencies are not required to decide issues unnecessary
to the results they reach).
Kaur’s motion for judicial notice is denied. See 8 U.S.C. § 1252(b)(4)(A)
(judicial review is limited to the administrative record); Dent v. Holder, 627 F.3d
365, 371 (9th Cir. 2010) (stating standard for review of out-of-record evidence).
PETITION FOR REVIEW DENIED.
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