11-3356-ag BIA
Kaur v. Holder Hom, IJ
A073 489 222
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
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IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR
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At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 9 th day of August, two thousand twelve.
PRESENT:
ROBERT A. KATZMANN,
RAYMOND J. LOHIER, JR.,
CHRISTOPHER F. DRONEY,
Circuit Judges.
_____________________________________
GURBAX KAUR,
Petitioner,
v. 11-3356-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Jaspreet Singh, Jackson Heights,
N.Y.
FOR RESPONDENT: Stuart F. Delery, Acting Assistant
Attorney General; James A. Hunolt,
Senior Litigation Counsel; Jesse D.
Lorenz, Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioner Gurbax Kaur, a native and citizen of India,
seeks review of the July 20, 2011, order of the BIA
affirming a decision of Immigration Judge (“IJ”) Sandy K.
Hom, which denied her second motion to reopen. In re Gurbax
Kaur, No. A073 489 222 (B.I.A. July 20, 2011), aff’g No.
A073 489 222 (Immig. Ct. N.Y. City April 13, 2011). We
assume the parties’ familiarity with the underlying facts
and procedural history of the case.
Under the circumstances of this case, we have reviewed
the decision of the IJ as supplemented by the BIA. See Yan
Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We
review the agency’s denial of a motion to reopen for abuse
of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.
2005) (per curiam).
The agency did not abuse its discretion in denying
Kaur’s second motion to reopen as untimely and number-
barred. See Kaur, 413 F.3d at 233-34. An alien may file
one motion to reopen, generally no later than 90 days after
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the date on which the final administrative decision was
rendered in the proceedings sought to be reopened. 8 U.S.C.
§ 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2). There is
no dispute that Kaur’s March 2011 motion was untimely and
number-barred, as her final administrative order was issued
in 1995 and she had previously filed one motion to reopen.
See 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R.
§ 1003.2(c)(2).
However, the time limitation does not apply to: (1) a
motion to rescind an exclusion order with a showing “that
the failure to appear was through no fault of the alien,” 8
C.F.R. § 1003.23(b)(4)(iii)(A)(2); or (2) motions to reopen
“based on changed circumstances arising in the country of
nationality or in the country to which deportation has been
ordered, if such evidence is material and was not available
and could not have been discovered or presented at the
previous hearing,” 8 C.F.R. § 1003.2(c)(3)(ii); see also 8
U.S.C. § 1229a(c)(7)(C)(ii).
To the extent Kaur sought to rescind her in absentia
exclusion order, the agency reasonably found that she had
received adequate notice of her hearing, and thus did not
demonstrate reasonable cause for her failure to appear,
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because she had been personally notified both in writing and
verbally in her native language of the date and time of her
hearing, and she acknowledged during her airport interview
and in a letter to the immigration court that she knew she
was to appear before an IJ sometime in June 1995. See Lopes
v. Gonzales, 468 F.3d 81, 84-85 (2d Cir. 2006) (concluding
that written notice in English was sufficient and that the
agency had no duty to notify alien of the consequences of
failure to appear in his native Portugese); cf. In re
Mancera-Monroy, 22 I. & N. Dec. 79, 82 (BIA 1998) (finding
that the lack of notice of a hearing constituted reasonable
cause for an alien’s failure to appear at his hearing).
Accordingly, because Kaur had notice of the time and place
of her hearing, the BIA did not abuse its discretion in
denying her motion to rescind. See 8 C.F.R.
§ 1003.23(b)(4)(iii)(B); Kaur, 413 F.3d at 233-34.
The agency also reasonably found that Kaur failed to
demonstrate a material change in conditions in India. While
the 2007 and 2008 State Department Reports Kaur submitted
document incidents of arbitrary arrest, rape, and torture by
police and one instance of anti-Sikh violence, she did not
provide evidence of conditions prior to her 1995 hearing, as
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required to demonstrate a change in conditions adequate for
reopening. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169
(2d Cir. 2008) (reviewing the BIA’s factual findings
regarding changed country conditions under the substantial
evidence standard); In re S-Y-G-, 24 I. & N. Dec. 247, 253
(BIA 2007) (“In determining whether evidence accompanying a
motion to reopen demonstrates a material change in country
conditions that would justify reopening, [the BIA]
compare[s] the evidence of country conditions submitted with
the motion to those that existed at the time of the merits
hearing below.”). Furthermore, the agency reasonably found
that Kaur’s background evidence was not material to her
asylum claim because it did not indicate that the police
targeted any specific group or that she, as a Sikh woman,
would be targeted for persecution. See 8 C.F.R.
§ 1003.2(c)(1), (3)(ii) (requiring that a motion to reopen
present material evidence of a change in country
conditions); 8 C.F.R. § 1208.13(b)(2)(i)(B) (requiring that
an alien’s fear of future persecution be objectively
reasonable).
Because the evidence Kaur submitted was insufficient to
establish a material change in country conditions, the BIA
did not abuse its discretion in concluding that she failed
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to meet an exception to the filing deadline and number
restrictions, and in denying her motion to reopen as
untimely and number-barred. See 8 U.S.C. § 1229a(c)(7)(A),
(C)(i), (ii); 8 C.F.R. § 1003.2(c)(2), (3).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, the pending motion
for a stay of removal in this petition is DENIED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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