                                                                           FILED
                             NOT FOR PUBLICATION                            APR 23 2012

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



SWARN SINGH KANG,                                No. 09-71009

               Petitioner,                       Agency No. A079-246-986

  v.
                                                 MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

               Respondent.



                      On Petition for Review of an Order of the
                          Board of Immigration Appeals

                             Submitted April 17, 2012 **

Before:        LEAVY, PAEZ, and BEA, Circuit Judges.

       Swarn Singh Kang, a native and citizen of India, petitions for review of the

Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen

removal proceedings. We have jurisdiction under 8 U.S.C. § 1252. We review for




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
an abuse of discretion the BIA’s denial of a motion to reopen. See Toufighi v.

Mukasey, 538 F.3d 988, 992 (9th Cir. 2008). We deny the petition for review.

      The BIA did not abuse its discretion in denying Kang’s motion to reopen as

untimely where the motion was filed over four and half years after the BIA’s final

order, see 8 C.F.R. § 1003.2(c)(2), and Kang failed to present sufficient evidence

that he exercised diligence in discovering his claim for ineffective assistance of

counsel, see Singh v. Gonzales, 491 F.3d 1090, 1096-97 (9th Cir. 2007) (petitioner

was not entitled to equitable tolling where there was no evidence of what he did

between the time he became suspicious of the fraud and when he sought advice

from his present counsel). Kang also failed to present sufficient evidence of

changed circumstances in India to qualify for the regulatory exception to the time

limit for filing motions to reopen. See 8 C.F.R. § 1003.2(c)(3)(ii); Malty v.

Ashcroft, 381 F.3d 942, 945 (9th Cir. 2004) (“The critical question is . . . whether

circumstances have changed sufficiently that a petitioner who previously did not

have a legitimate claim for asylum now has a well-founded fear of future

persecution.”).

      Because Kang failed to establish that an exception to the time limit for filing

a motion to reopen applies, the BIA did not abuse its discretion in not addressing

whether Kang has a claim for relief under the Convention Against Torture.


                                           2                                    09-71009
      Finally, Kang’s contention that the BIA failed to properly address the

evidence is belied by the record.

      PETITION FOR REVIEW DENIED.




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