     17-3214
     Singh v. Barr
                                                                                   BIA
                                                                           A205 931 845

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                SUMMARY ORDER
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 1        At a stated term of the United States Court of Appeals
 2   for the Second Circuit, held at the Thurgood Marshall
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 15th day of November, two thousand
 5   nineteen.
 6
 7   PRESENT:
 8            ROBERT A. KATZMANN,
 9                 Chief Judge,
10            REENA RAGGI,
11            SUSAN L. CARNEY,
12                 Circuit Judges.
13   _____________________________________
14
15   GURWINDER SINGH,
16                 Petitioner,
17
18                   v.                                          17-3214
19                                                               NAC
20
21   WILLIAM P. BARR, UNITED STATES
22   ATTORNEY GENERAL,
23                 Respondent.
24   _____________________________________
25
26   FOR PETITIONER:                  Amy Nussbaum Gell, New York, NY.
27
28   FOR RESPONDENT:                  Chad A. Readler, Acting Assistant
29                                    Attorney General; Holly M. Smith,
1                                   Senior Litigation Counsel; Sarah
2                                   K. Pergolizzi, Trial Attorney,
3                                   Office of Immigration Litigation,
4                                   United States Department of
5                                   Justice, Washington, DC.
6
7        UPON DUE CONSIDERATION of this petition for review of a

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

9    ORDERED, ADJUDGED, AND DECREED that the petition for review

10   is DISMISSED in part, and DENIED in part.

11       Petitioner Gurwinder Singh, a native and citizen of

12   India, seeks review of a BIA decision denying his motion to

13   reopen.    See In re Gurwinder Singh, No. A205 931 845 (B.I.A.

14   Sept. 15, 2017).     We assume the parties’ familiarity with the

15   underlying facts and procedural history in this case.

16       We review the BIA’s denial of a motion to reconsider or

17   reopen for abuse of discretion, and we review the BIA’s

18   determination regarding country conditions for substantial

19   evidence.     See 8 U.S.C. § 1252(b)(4)(B) (“[A]dministrative

20   findings    of   fact    are   conclusive   unless   any    reasonable

21   adjudicator      would    be   compelled    to   conclude     to   the

22   contrary[.]”); Jian Hui Shao v. Mukasey, 546 F.3d 138, 168-

23   69 (2d Cir. 2008); Jin Ming Liu v. Gonzales, 439 F.3d 109, 111

                                        2
1    (2d    Cir.    2006).       We    do   not    reach      the   agency’s     adverse

2    credibility finding, however, because Singh did not timely

3    appeal the BIA’s affirmance of the IJ’s adverse credibility

4    determination.         See Paul v. Gonzales, 444 F.3d 148, 153 (2d

5    Cir. 2006) (“[W]here an asylum applicant does not file a

6    timely appeal disputing the BIA’s affirmance of the IJ’s

7    credibility ruling, a motion to reopen does not provide a

8    collateral route by which the alien may challenge the validity

9    of the original credibility determination.”).                         Accordingly,

10   our review is limited to the BIA’s denial of Singh’s motion

11   to reconsider and reopen, see id., and we identify no abuse

12   of discretion in the BIA’s denial of that motion.

13   Motion to Reconsider

14          The     BIA    did   not    abuse      its     discretion      by    denying

15   reconsideration because Singh’s June 2017 motion was filed

16   more than 30 days after the BIA’s April 2017 decision.                            See

17   8     U.S.C.      § 1229a(c)(6)(B)           (providing        that    motion      to

18   reconsider “must be filed within 30 days of the date of entry

19   of    a   final      administrative     order       of   removal”);        see   also

20   8 C.F.R. § 1003.2(b)(2).

                                              3
1    Motion to Reopen

2           Singh’s motion to reopen, however, was timely filed.            See

3    8 U.S.C.    § 1229a(c)(7)(C)(i)       (providing    that     “motion   to

4    reopen shall be filed within 90 days of the date of entry of

5    a   final    administrative     order    of    removal”);      8 C.F.R.

6    § 1003.2(c)(2) (same).        “[A] motion to reopen shall state

7    the new facts that will be proven at a hearing to be held if

8    the motion is granted, and shall be supported by affidavits

9    or other evidentiary material.” 8 U.S.C. § 1229a(c)(7)(B);

10   8 C.F.R. § 1003.2(c)(1).       “A motion to reopen proceedings

11   shall not be granted unless . . . th[e] evidence sought to be

12   offered is material and was not available and could not have

13   been    discovered   or   presented     at    the   former    hearing.”

14   8 C.F.R. § 1003.2(c)(1); see also INS v. Abudu, 485 U.S. 94,

15   104 (1988) (observing that BIA may deny motion to reopen if

16   movant has not introduced previously unavailable, material

17   evidence).

18          The BIA did not err in denying Singh’s motion to reopen

19   because the evidence he offered in support thereof was either

20   not new, or not material in that it merely reinforced country

                                       4
1    conditions evidence already in the record.              Two of the twelve

2    documents that Singh submitted with his motion to reopen pre-

3    date his August 2016 hearing before the IJ, and the relevant

4    evidence that post-dates his hearing details events that

5    occurred before August 2016.              Such evidence, therefore, was

6    not   previously     unavailable      or    new    because     it    describes

7    conditions and events in India before Singh’s hearing.                      See

8    8 C.F.R. § 1003.2(c)(1).

9          Nor   was    the   evidence     material      because     it    did   not

10   demonstrate conditions for Sikhs in India different from

11   those reflected in the evidence produced at Singh’s hearing.

12   Singh’s     original       evidence     demonstrated     that        religious

13   tensions were an ongoing concern in India, and that Hindu

14   nationalists had long engaged in the persecution of religious

15   minorities,       including    Sikhs.        The    evidence    that       Singh

16   submitted    with    his     motion   to     reopen    confirmed       ongoing

17   religious tension and violence and that conditions had been

18   deteriorating      since    before    Singh’s      hearing.         See,   e.g.,

19   Certified Administrative Record (“CAR”) at 52-53 (2017 U.S.

20   Commission on International Religious Freedom Report).                       In

                                           5
1    short, the evidence was not materially different.

2        Singh argues that conditions for Sikhs have worsened

3    since the election of Prime Minister Narendra Modi, but that

4    election occurred in 2014, two years before Singh’s hearing.

5    While an article reports that Hindu nationalists and Prime

6    Minister Modi’s party dominated the 2017 regional elections,

7    and that there are tensions between Muslims and Hindus, it

8    does not otherwise detail any increased repression of Sikhs.

9    See CAR at 75-76.        On this record, the agency was not

10   compelled    to   conclude   that   Singh’s   evidence   was   new   or

11   material to his fear of harm as a Sikh so as to warrant

12   reopening.    See INS v. Abudu, 485 U.S. at 104; Jian Hui Shao

13   v. Mukasey, 546 F.3d at 168-69.

14       For the foregoing reasons, the petition for review is

15   DISMISSED in part as to Singh’s challenges to the underlying

16   adverse credibility determination and DENIED in remaining

17   part.

18                          FOR THE COURT:
19                          Catherine O’Hagan Wolfe, Clerk of Court
20
21


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