     14-25
     Kaur v. Lynch
                                                                                       BIA
                                                                               A075 306 900
                          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 APPELLATE
PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE
(WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1        At a stated term of the United States Court of Appeals for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   12th day of October, two thousand sixteen.
 5
 6   PRESENT:
 7            JON O. NEWMAN,
 8            ROSEMARY S. POOLER,
 9            RICHARD C. WESLEY,
10                 Circuit Judges.
11   _____________________________________
12
13   AMARJIT KAUR,
14            Petitioner,
15
16                   v.                                              14-25
17                                                                   NAC
18   LORETTA E. LYNCH, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                    Amarjit Kaur, Pro Se, Richmond Hill,
24                                      New York.
25
26   FOR RESPONDENT:                     Joyce R. Branda, Acting Assistant
27                                       Attorney General; Jennifer L.
28                                       Lightbody, Senior Litigation
29                                       Counsel; Laura M.L. Maroldy, Trial
30                                       Attorney, Office of Immigration
31                                       Litigation, United States
32                                       Department of Justice, Washington,
33                                       D.C.
1        UPON DUE CONSIDERATION of this petition for review of a

2    Board of Immigration Appeals (“BIA”) decision, it is hereby

3    ORDERED, ADJUDGED, AND DECREED that the petition for review is

4    DENIED.

5        Petitioner Amarjit Kaur, a native and citizen of India,

6    seeks review of a December 12, 2013, decision of the BIA denying

7    her fifth motion to reopen.     In re Amarjit Kaur, No. A075 306

8    900 (B.I.A. Dec. 12, 2013).    We assume the parties’ familiarity

9    with the underlying facts and procedural history in this case.

10       Our review is limited to the BIA’s December 2013 decision

11   denying Kaur’s fifth motion to reopen her removal proceedings.

12   See Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 89-90

13   (2d Cir. 2001).   We review the BIA’s denial of Kaur’s motion

14   for abuse of discretion.      Ali v. Gonzales, 448 F.3d 515, 517

15   (2d Cir. 2006).

16       An alien seeking to reopen proceedings may file one motion

17   to reopen no later than 90 days after the final administrative

18   decision.   8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R.

19   § 1003.2(c)(2).   There is no dispute that Kaur’s September 2013

20   motion to reopen is untimely and number barred because the final

21   administrative decision was issued in 1998—when Kaur failed to

22   appear in immigration court—and this was Kaur’s fifth motion.

23   Although the time and number limitations may be excused based

24   on a material change in conditions “in the country of
                                   2
1    nationality or the country to which removal has been ordered,”

2    8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R.

3    § 1003.2(c)(3)(ii), as discussed below, Kaur’s evidence showed

4    only a continuation of prior conditions.

5        Kaur’s motion alleged that police continue to look for her

6    based on her political activities 17 years ago; she alleged the

7    same in prior motions to reopen.    The BIA did not err in finding

 8   these conditions to be merely a continuation of those previously

 9   alleged and thus not new evidence as required for reopening.

10   See Norani v. Gonzales, 451 F.3d 292, 294 (2d Cir. 2006); In

11   re S-Y-G, 24 I. & N. Dec. 247, 253 (BIA 2007).

12       Moreover, the country conditions evidence in the record

13   supports the BIA’s determination that Kaur failed to establish

14   a material change in conditions.    Jian Hui Shao v. Mukasey, 546

15   F.3d 138, 169 (2d Cir. 2008).      The BIA did not err in giving

16   little weight to letters from Kaur’s father-in-law and village

17   leader.   Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315,

18   342 (2d Cir. 2006); In re H-L-H & Z-Y-Z, 25 I. & N. Dec. 209,

19   215 (BIA 2010), rev'd on other grounds by Hui Lin Huang v.

20   Holder, 677 F.3d 130 (2d Cir. 2012).    First, although the 1997

21   State Department India Country Profile, in evidence during

22   Kaur’s original proceedings, showed improvement in conditions

23   for Punjabi Sikhs following a widespread crackdown on violent

24   Sikh separatists, that report also reflected that individual
                                   3
 1   Sikhs were still detained and questioned about prior militancy

 2   and that “[c]ustodial abuse[s of individual Sikhs] . . .

 3   remain[ed] a significant problem.”            Kaur appended similar

 4   evidence to her motion, including several newspaper articles

 5   showing isolated incidents of torture and unexplained deaths

 6   of Sikhs in police custody.        The evidence also showed that,

7    while     torture   remained   a   problem,    the   government   was

8    investigating and arresting offending officers.          None of her

9    evidence establishes that Sikh separatists are at a greater

10   threat of police violence than they were in 1998, the year of

11   Kaur’s merits hearing.      In re S-Y-G, 24 I. & N. Dec. at 253.

12   Thus, the BIA did not abuse its discretion in finding no material

13   change as needed to excuse the time and number limitations on

14   Kaur’s motion.      8 U.S.C. § 1229a(c)(7)(C)(ii); Ali, 448 F.3d

15   at 517.

16       Kaur also argues that the BIA should have reopened because

17   her counsel in her initial proceeding was ineffective and

18   allowed her to be ordered removed in absentia.        We, as did the

19   BIA, decline to reach this issue as we have already addressed

20   it and found it without merit.       A motion to reopen is not a

21   vehicle to present previously rejected arguments based on

22   evidence that existed years prior to the filing of the motion.

23   See 8 C.F.R. § 1003.2(c) (requiring new evidence for reopening);

24   Johnson v. Holder, 564 F.3d 95, 99 (2d Cir. 2009) (holding that
                                    4
1    “law of the case” doctrine requires court to adhere to prior

2    decision on issue in subsequent stages of same case).

3        For the foregoing reasons, the petition for review is

4    DENIED.    As we have completed our review, any stay of removal

5    that the Court previously granted in this petition is VACATED,

6    and any pending motion for a stay of removal in this petition

7    is DISMISSED as moot.    Any pending request for oral argument

8    in this petition is DENIED in accordance with Federal Rule of

9    Appellate Procedure 34(a)(2), and Second Circuit Local Rule

10   34.1(b).

11                                 FOR THE COURT:
12                                 Catherine O=Hagan Wolfe, Clerk




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