Case: 12-60160 Document: 00512085744 Page: 1 Date Filed: 12/17/2012
United States Court of Appeals
Fifth Circuit
IN THE UNITED STATES COURT OF APPEALS I L E D
F
FOR THE FIFTH CIRCUIT December 17, 2012
Lyle W. Cayce
Clerk
No. 12-60160
Summary Calendar
LAKHWINDER SINGH,
Petitioner
v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A096 044 294
Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Lakhwinder Singh, a native and citizen of India, petitions for review of the
decision of the Board of Immigration Appeals (“BIA”) denying his third motion
to reopen his removal proceedings. Singh does not dispute that his motion to
reopen was untimely and number-barred. Singh contends that he may move to
reopen under an exception permitting aliens to apply for asylum, withholding of
removal, or relief under the Convention Against Torture (“CAT”), based on
previously unavailable and material evidence of changed country circumstances.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Case: 12-60160 Document: 00512085744 Page: 2 Date Filed: 12/17/2012
No. 12-60160
See Panjwani v. Gonzales, 401 F.3d 626, 631 (5th Cir. 2005); see also 8 U.S.C.
§ 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii). Singh presented affidavits of his
parents, sister, a family friend, an attorney, and his village sarpanch (mayor) in
support of his motion, showing that the police had arrested, questioned, and
beaten his father because they suspected that Singh was a member of the
Babbar Khalsa Liberation Force.
The BIA’s decision denying the motion to reopen is reviewed by this court
under a “highly deferential abuse-of-discretion standard.” Gomez-Palacios v.
Holder, 560 F.3d 354, 358 (5th Cir. 2009). “[T]his court must affirm the BIA’s
decision as long as it is not capricious, without foundation in the evidence, or
otherwise so irrational that it is arbitrary rather than the result of any
perceptible rational approach.” Id.
Singh has not shown the BIA abused its discretion in denying his motion
to reopen because he has not shown there are materially changed circumstances
in India that would affect his eligibility for asylum, withholding of removal, or
relief under the CAT. See Panjwani, 401 F.3d at 632 n.7.
To the extent Singh alleges that the BIA’s denial of his motion to reopen
violated his due process rights, his claim lacks merit. Singh cannot establish a
due process violation because there is no liberty interest at stake in a motion to
reopen due to the discretionary nature of the relief sought. See Gomez-Palacios,
560 F.3d at 361 n.2.
In his petition for review, Singh does not argue that the BIA abused its
discretion in denying his motion to reopen based on alleged ineffective assistance
of counsel or based on his recent marriage to a United States citizen. Therefore,
he has abandoned these arguments. See Thuri v. Ashcroft, 380 F.3d 788, 793
(5th Cir. 2004).
PETITION DENIED.
2